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2006 (8) TMI 342 - AT - CustomsValuation - Confiscation - Availment of fraudulent DEPB Scheme - Inflation of price - HELD THAT:- It is also not the case of the department that the transaction between the exporters and the foreign buyers is not genuine. The exporters have procured the goods for valuable consideration and in turn, received the foreign exchange fully for the sale of goods to the foreign buyer. Therefore, there is no reason to discard the Transaction Value as between the manufacturer and the exporter on the one hand and the exporter and the foreign buyer on the other hand. (b)The Board’s Circular relied by the ld. Advocate stipulates that if the FOB value is within 150% of the manfacturer’s price, the same cannot be rejected. The said Circular is binding on the department and has to be and been consistently followed in the decisions relied upon by the ld. Advocate appearing for the respondents. We do not see any reasons to take a different view. (c) The exporter and buyer are not related parties. The price is not stated to be not the sole consideration. Rather it is on record that full consideration for the exported goods has been realised. At the most the inquiries with M/s. Accidental Software may only mean that the cost to the manufacturer is nominal but keeping in mind the provisions of Section 14 of the Act, the cost to the manufacturer is not relevant. The manufacturers do and may have made a huge profit. The manufacturer has imported the masters and there is nothing on record to dispute that. The only fact known is the selling price of the manufacturer, on the basis of which, applying the said Circular referred above, the FOB value cannot be rejected u/s14 of the Act. As regards fixation of DEPB eligibility pleaded by Revenue, we find that this Tribunal in the case of Kobian ECS India Pvt. Ltd.[2003 (9) TMI 378 - CESTAT, MUMBAI] had after examining the provisions of DEPB Scheme, the instructions on the subject and the law found that a declaration for DEPB is not a declaration which should be held as a prohibition under Customs Act, 1962 and the Customs have a limited roll to play especially as regards grant/eligibility of DEPB credit. Therefore, we find no reasons to uphold the present appeal to enable redetermining the DEPB eligibility. No material was shown to us as to how the Sections of FERA, 1973 could be applicable in this case made out in the last few years of the last decade of 1990. In view of the findings, no merits are found in Revenue’s appeal. Thus, appeal filed by Revenue in case of exports made by M/s. Subhalakshmi Exports on same grounds is to be rejected. Appeals filed by Revenue in case of M/s. Crown International and M/s. Subhalakshmi Exports are dismissed.
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