TMI Blog2001 (4) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of these shirts was declared to be Rs. 2.40 crores. The total present market value was declared to be slightly in excess of Rs. 2.64 crores. This was on the basis of the f.o.b. value of Rs. 455/- for a man s shirt and Rs. 325/- for woman s shirt, with corresponding market value of Rs. 500/- and Rs. 325/- respectively. 3. Under the DEPB scheme, the exporter of any goods earns as credit a percentage of the f.o.b. value of the goods exported, to be set off against duty payable on goods that may be imported. The rate of credit specified for garments at the relevant time was 18% of the f.o.b. value. Paragraph 7.36A of the handbook set a ceiling or limit on the availability of DEPB. It said that in respect of the products where the rate of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly. He has ordered confiscation of the three consignments and allowed their redemption for clearance into town on payment of fine of Rs. 15 lakhs. He has also imposed penalty of Rs. 2.5 lakhs on the exporter. 5. We shall first consider the liability to confiscation of the goods. Clause (d) of Section 113 of the Act provides for liability to confiscation of any goods attempted to be exported or brought into a customs area for being exported, contrary to any prohibition imposed by or under the Act or any other law for the time being in force. Counsel for the appellant contends that there is no prohibition on the export of the goods. They do not fall in any list of goods the export of which is prohibited or requires a licence. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of an incorrect declaration of value. We must also note that. We are therefore unable to sustain the confiscation order of the goods and consequent fine and penalty it suffered. 7. We now turn to the value of the goods. The department relies upon a statement of Krishna Sharma, of Krishna Apparel, a trader of garments. After seeing a sample of the goods tendered for export, Krishna Sharma gave an estimate of their value. In the cross-examination to which he was subjected in the adjudication proceedings before the Commissioner, he stood by the value that he had estimated. The result of the cross-examination is, nevertheless, not satisfactory. Sharma agrees that he did not put any identification on the sample of the shirt on which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says that he would be able to submit material in support of this statement. In these circumstances, we are of the opinion that the value of the fabrics requires fresh and detailed examination at the hands of the Commissioner, after considering the evidence that the appellant may produce, as also the department. 9. We therefore allow this appeal, set aside the confiscation of the shirts and the penalty imposed upon the appellant and remand to the Commissioner for adjudication the determination of the DEPB credit available to the appellant, consequent on determination of the present market value of the shirts, on their exportation. 10. Counsel for the appellant says that the shirts were tendered for export in July, 1999 and are still lyi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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