TMI Blog2006 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ish products and availed DEPB credit at 4%/5% declaring that preservatives, as prescribed in Standard Input-Output norms relating to fish and marine products have been used in the export product. DRI investigated the matter. As a result of the investigation, it was revealed that the appellants had misdeclared that they had used the preservatives. Lot of evidence was unearthed to show that they had not used the prescribed preservatives. Hence, Revenue proceeded against the appellants for recovery of the higher DEPB credit availed by them. The credit availed on the export of the products is Rs. 1,74,89,739/-. After the adjudication proceedings, the Commissioner passed the impugned order and held the following: (i) The goods already exported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-Cus., dated 3-6-97 relating to the role of customs authorities pertaining to DEPB case, as per which reference to DGFT for decision relating to the credit eligibility is a must. (ii) The appellant submits that the customs has no jurisdiction to vary or reduce credit, as per the decision of the CEGAT in TTK Prestige Ltd. v. CC - 2005 (188) E.L.T. 385 (T) and in the present case not even a reference is made to the DGFT authorities relating to the credit eligibility. (iii) No licences issued to the appellant under the DEPB scheme have been cancelled and even in the solitary case referred to by the Customs, the appellant has been asked to surrender the said DEPB (one number 1010003531 dt. 5-12-2000). The appellant has adjusted DEPB credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that there has been no excess DEPB credit claimed. Therefore, the impugned order is bad in law. Even the solitary licence where credit of Rs. 3.8 lakhs has been demanded by DGFT, asks the appellant to adjust or surrender the credit against future licences and there is no cancellation. (viii) The impugned order is contrary to Board's Circular No. 15/1997-Cus and 45/2003-Cus which are binding on the Revenue and the learned Respondent, as per the decisions of the Apex Court in the following cases : • K.P. Varghese v. ITO - 1981 (137) E.L.T. 597 (sic) • Ranadey Micronutrients v. CCE - 1996 (87) E.L.T. 19 • Poulose and Mathen v. CCE - 1997 (90) E.L.T. 264 • Paper Products Ltd. v. CCE - 1999 (112) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he declaration given before the Customs, they have stated that preservatives as per Standard Input-Output norms have been used. However, in the declaration to the purchaser of the export product, they have stated that no preservatives have been used. Therefore, the Adjudicating Authority has come to the finding that they are not entitled for the higher DEPB credit. In respect of one DEPB licence, the DGFT authorities have held that the appellants are not entitled for higher credit. This has also been noted in the adjudicating order. The DEPB credit itself as per the policy is given by the DGFT authorities. When the scheme was introduced, Government of India issued a Circular No. 15/97 dated 3-6-97. We are reproducing Paras, 1 and 2 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate has held that the power to determine and modify DEPB credit vests only with DGFT Authorities. Customs Authority's duty is to verify the exporters' declaration, quantity and value of export products. Once DGFT decides to grant credit, the Customs Authorities cannot modify the credit. This is not to mean that the exporter should go scot free with the mis-declaration. We only point out that as per Government's policy the jurisdiction to initiate recovery of excess credit lies with the DGFT. This is very clear from the following order of the DGFT in respect of the appellant's one DEPB licence wherein they had held that the appellant is not entitled for higher credit. This letter is reproduced below : GOVERNMENT OF INDIA MI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as chemicals and preservatives in the export product. It was also noted that you did not use Sodium Metabisulphite, which is one of the main preservative and chemical allowed in the SION. Thus the Committee decided that the decision in granting 5% rate stands reviewed and directed this office to start the Enforcement-cum-Adjudication (ECA) proceedings against you to initiate recovery of excess DEPB credit. It is noticed that you have availed excess DEPB credit of Rs 380168/- against the above referred DEPB Licence which may be surrendered immediately or otherwise, the same shall be adjusted from your future claims and ECA proceedings initiated. Yours faithfully, Sd/- (K. KOMALAVALLY) FOREIGN TRADE DEVELOPMENT OFFICER FOR JOIN ..... X X X X Extracts X X X X X X X X Extracts X X X X
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