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2017 (9) TMI 202 - AT - CustomsDEPB scheme - Jurisdiction - export of consignment of ‘Eau De Perfume’ - denial of DEPB benefit on the ground that alcohol content is more than 70%, whereas the DEPB credit is available only when the percentage of alcohol is upto 70% - case of appellant is that the Customs have no jurisdiction to deny DEPB credit and recover the same as duty of Customs - Held that: - At best, Customs authorities can take up the matter with the Licensing authority under the Foreign Trade Development Regulation Act for non-grant of such DEPB credit. From the record, we find this has already been done. However, in view of mis-declaration by the appellant, the order for confiscation of the export goods is upheld but the demand raised under section 28 is set aside. Demand of ₹ 11,58,438/- involving goods which have been already exported under various shipping bills - Held that: - no sample of the goods covered by earlier consignments have been drawn by the Customs Authorities. Further, there is no reference to any test reports of such earlier samples - Misdeclaration has to be established on the basis of positive evidence and cannot be by implication that the goods were same as what was exported later. In the absence of any kind of evidence with reference to goods exported earlier, the allegations of misdeclaration in the earlier consignment cannot be upheld. For the same reason, the benefit of DEPB already claimed by the appellant in respect of such exports cannot be denied. Appeal allowed - decided partly in favor of appellant.
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