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2013 (5) TMI 69 - AT - CustomsRejection of FOB value - Incorrect ‘FOB’ value - confiscation. - The dispute relates to arriving at the ‘FOB value’ from the ‘CIF’/CIP’ value for the purpose of claiming DEPB credit. - Demand of differential duty U/s 28(1) of the Customs Act, 1962 along with interest U/s 28AB of the Customs Act - Penalties on the assessee-company and its three officials - Held that:- As clarified by the Board in 1998 itself, the FOB value will not include the cost of international transportation beyond the Indian port. (The clarification issued in the context of export made through Indian Land Customs Station shall be applicable to export by sea and air also). The terms like FOB, CIF, CIP are well known “Incoterms” (International commercial terms) as duly noted by the Commissioner in his order The demand appears to be on goods so imported using such DEPB scrips. However, nowhere any evidence relating to import of any goods, relevant bills of entry, value of the goods imported, the duty short levied on such goods, etc., are relied upon. -If the scrips have been shown to have been used to clear duty free the imported goods, then duty to the said extent short levied shall be recoverable under Section 28(1) of the Customs Act subject to fulfilment of conditions mentioned therein. The FOB value declared by the assessee-company in the shipping bills were not correctly declared inasmuch as amounts paid under heads of FSC, SCC, etc., were not deducted from CIF prices. However, this appears to be on the basis of industry practice as duly noted by the Commissioner. The Customs authorities are competent to issue show-cause notice without challenging the assessment in the shipping bills by issue of show-cause notice as provided under the law - However, the Customs authorities cannot unilaterally alter the amount of DEPB benefit given by DGFT authorities based on export documents relating to exports already made. Such a modification can be done only by referring the matter to the DGFT authorities either to cancel or modify the DEPB scrips - Only when DEPB scrips have been utilised for duty free clearance of imported goods, the Customs authorities can demand under Section 28(1) of the Act, duty short levied/non-levied on such imported goods giving reference to such imports - In the facts and circumstances of the case, there is no justification of imposition of penalties on any of the appellants - the impugned order is set aside and all the appeals are allowed with consequential relief as per law.
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