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2005 (11) TMI 135 - AT - Central ExciseEXIM Policy - DEPB credit - inflated value given for getting undue benefit under the DEPB Scheme - Penalty - ascertaining the Present Market Value (PMV) of the export goods - HELD THAT:- It is well known that the Customs department is undertaking a lot of agency function. The import/export statistics for the country is prepared by the Customs department. Various types of cess/fees for other departments are collected by the Customs. Similarly, the ascertainment of PMV is one such function undertaken by the Customs for the licensing authority. There is no provision under the Customs Act for levy of penalty for mis-declaration of PMV. As regards the present case, the Department has arrived at the PMV of the goods to be exported on the basis of expert opinion of HMT. Moreover, the statements of Shri Shantilal Jain and Shri G. Vimal Bhandari testified the fact that the watches have been purchased at a lower price compare to what has been declared in the shipping bill. Prima facie, there is evidence of inflation of the value of the goods declared in the shipping bill. However, the appellants contended that they have realized the entire Foreign Exchange. Revenue has not established that similar or identical goods have been exported at lesser value. Hence there is not any evidence to show that the value declared by the appellants in the shipping bill violates Section 14 of the Customs Act, 1962. Moreover, there is no findings by the adjudicating authority that the export goods are liable for confiscation. The fact that the goods are not available cannot be the reason for not holding them to be liable for confiscation. In fact, this omission on the part of the adjudicating authority is very fatal to the case. As there is no finding that the export goods are liable for confiscation, no penalty under Section 114 of the Act can be imposed. Therefore, we set aside the penalties but uphold the determination of PMV at Rs. 230/- per piece for the purpose of DEPB credit as far as the present consignment is concerned. However, in respect of the earlier consignments, the value determined for the present consignment cannot be adopted. The appeal and disposed of in the above terms.
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