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TMI Blog2009 (9) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had been availing excessive drawback/DEPB on the export of Auto Parts by resorting to unfair means, search was conducted on 5-11-2004 to the premises situated at 309. H.l, Garg Tower, III Floor, Netaji Subhash Place, Opposite T.V. Tower, Delhi and residential-cum/Working premises situated at TP-22, Maurya Enclave, Pitampura, New Delhi. 2.2 In the course of search to the premises in Netaji Subhash Place, the Investigating Authority found certain incriminating documents including parallel export invoices. Investigating officers also found three computers containing export data. Few data were retrieved from the systems and found to be incriminating. So also the authorities took representative sample of major export items. Such a discovery called for further inquiry. Search to the premises situated at Maurya Enclave, Pitampura, resulted in discovery of one file containing some Misc. papers/stickers/proforma invoices of the appellant company and also a catalogue which was considered to be relevant for the purpose of enquiry. 2.3 In view of the documents recovered as above, statements were recorded from Smt. Kum Kum Goel, Director of the appellant company on 5-11-2004. On the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Para 6 of order in original) Remittances were received as per export invoices. The relationship of the appellant company with the importers of Dubai and Kuwait was on principal to principal basis. 2.7 Investigation also recorded statement from Shri Simon Kishore Spencer on 5-11-2004. According to his statement, he was working with the appellant company and procures export orders for the appellant from abroad. Against the invoice No. SE/010/04-05 and SE/010A/04-05 both dated 22/23-9-04 forming part of Shipping Bill No. 1419533 dated 24-9-04 and No. 1419983 dated 25-9-04, he stated that aggregate value of export under these two shipping bills was 3564609 US $, as against the certificate of origin No. 651553 dated 13-10-04 in relation to invoice No. SE/010/010A/04-05 dated 27-9-04, Shri Spencer stated that aggregate value of goods exported under these two shipping bills appear as US $ 13435.74 which is mentioned in the certificate of origin in respect of these two invoices. He confirmed that different values appear in the invoice forming part of Shipping bill and different value appears in the invoice forming part of certificate of origin although both the documents relate to same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter who was exporting goods under Drawback/DEPB Scheme. He found that there were two sets of parallel invoices discovered in the course of search. One set was issued to the Customs authorities alongwith shipping bills and other set was sent to Delhi Chamber of Commerce to issue certificate of origin. The invoices forming part of shipping bill was showing higher value of exportable goods while invoices attached to certificate of origin was showing lower value of exports. The Adjudicating Authority found that drawback and DEPB benefits were claimed by the appellant exporter on the basis of invoice submitted to the Customs Authority alongwith shipping bills. Against the plea of the appellant that the invoices submitted to the Chamber of Commerce was not submitted before any authority in India, was discarded holding that invoice is an Internationally accepted document and certificate of origin issued by the Chamber of Commerce is a requirement of International trade since the Chamber of Commerce is a recognized body for issue of certificate of origin. Consequently, the plea of non-submission of parallel invoices before any authority had no legs to stand. Further pleading of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar No. 61/97, dated 8-12-1997 throws light that the value declared in the Excise documents like AR-4 is permissible with upward adjustment of 50% thereof. In order to foster export, exportable value declared shall not exceed 150% of AR 4 value. Therefore, value of goods procured from the manufacturers cannot be disturbed at all. 7. Learned Counsel further submitted that there was no overvaluation of goods made by the appellants. Learned adjudicating authority has mis-construed the ratio laid down by Apex Court in the case of Om Prakash Bhatia v. Commissioner of Customs Delhi reported in 2003 (155) E.L.T. 423 (S.C.). Also he relied on the decision of the Hon'ble High Court of Bombay in the case of Kannu Bhai Engineers v. Union of India reported in 2003 (158) E.L.T. 571 to claim that there was no over-valuation of goods made while exporting. There was no parallel invoices at all considered by Delhi Chamber of Commerce while issuing certificate of origin. Only proforma value was declared to the Delhi Chamber of Commerce for issue of certificate of origin. When Chamber of Commerce did not certify value of goods, that cannot be a basis to disallow DEPB/drawback claim to the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck/DEPB should limit to invoice value of those goods. 11. So far as 13 invoices covering the goods purchased from open market are concerned, there was no effort made by either side to prove the cost of manufacture and applicable profit on such goods. The appellant claims that in the past whenever valuation of exportable goods was questioned by Customs Authority in those circumstances, they had reduced value of such questioned goods by 20% to 30% of value thereof. That remained undisputed by Revenue. Accordingly, it would be proper to reduce value of the goods procured from traders through 13 invoices by 30% for the purpose of entertaining Drawback/DEPB claim made by the appellant. 12. In the course of hearing of appeal, the appellant failed to prove its good conduct of issuing parallel invoices to Delhi Chamber of Commerce. Intention of the appellant appears to enrich itself at the cost of Revenue in case of unnoticed transactions. When there was admission by the appellant that its past practice has resulted with 20 to 30% of reduction of value of export on examination of export by customs, levy of penalty of Rs.50,000/- is justified to prevent recurrence of such practice. 13. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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