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2013 (8) TMI 508 - AT - CustomsDEPB - Over invoicing - Revision of PMV (Present Market Value) and FOB value – Confiscation of goods u/s 113(d) – Penalty u/s 114 - notice was issued u/s 124 r.w Section 113 alleging misdeclaration of material facts and value of the goods exported - Whether there had been overvaluation of the consignments of steel balls exported by the assesse during the period for the purpose of obtaining higher DEPB credit than eligible – Held that:- FOB values and the PMV declared by the assesse in the shipping bills under which they had undertaken the export were correct and valid in law – The PMV cannot be challenged by going into the cost of manufacture - The burden to prove that PMV was inflated one was on the Department which had not been discharged - Revenue had not succeeded in making out a case against the assesse as the PMV declared was not more than 150% of AR-4 value - during the material period the Department allowed export of goods by other exporters under DEPB Scheme at much higher FOB values than what had been declared by the assesse and the details of the transactions were available with the Department for cross-checking. Additional evidence cannot be allowed to be submitted and considered at the appellate stage - the delay was almost 10 years after the issue of show-cause notice - the request of the Department was very strange and quite unconvincing – Request for filing additional evidence at this stage since it appears to be only a ploy to delay the case further could not be accepted - the present market value arrived at by the assesse were within permissible limits – assesse had realized the full export proceeds through proper banking channels and within the extended period granted by the Reserve Bank of India - Merely because there had been a delay in the realization of export proceeds the Department’s conclusion that the entire transaction was a sham one had no basis and had to be rejected totally - DEPB credit claimed @22% of the FOB value by the assesse was rightly entitled – order set aside – penalty Set aside – Decided in favor of assesse.
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