TMI Blog2010 (9) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... the same impugned order. 2. Heard both sides. 3. The relevant facts in brief are as follows :- (a) The appellant company filed two Shipping Bills both dated 3-4-2003 for export of 9900 pieces of Woven trousers valued at Rs. 500/- per piece. The total declared FOB value of the goods was Rs. 49,50,000/- with a claim of draw back of Rs. 5,94,000/- The appellant company also filed four shipping Bills all dated 3-4-2003 for export of 6120 kgs of articles of Nickel Welding Electrodes with declared value of Rs. 400/- per kg. The total declared FOB value was Rs. 24,48,000/- with a claim of drawback of Rs. 3,42,720/-. Both these consignments were consigned to a buyer in Russia. (b) The officers, as follow up of case against the appellant company in Gurgaon, Haryana subjected the above consignment for closer examination. The consignments have already been examined by the officers. During re-examination, they found that instead of declared articles of Nickel Welding Electrodes, the consignments covered by four shipping bills were found to be Iron Electrodes. The examination of the consignment of RMG, according to the investigation, revealed that the consignments were misdeclared in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Nickel Electrodes, he submits that it was a case of mistaken loading of the consignments by their employees. He submits that on 4-4-2003 itself, they came to know about the human error and accordingly addressed a letter to the Assistant Commissioner and also prepared an affidavit to this effect. The said documents according to the learned Advocate, were delivered to the officers on the same date i.e. 4-4-2003. In other words, though there is mistake in the description in the shipping bills, the said mistake is not a deliberate one. (d) Regarding admission statement of the appellant Director dated 18-4-2003, he submits that the same were as dictated by the officers and not voluntarily given. The said statement was retracted at the earliest on 19-4-2003 from the jail to the concerned authorities. The statement which stands retracted should not be relied upon and the confiscation and penalties should be set aside. (e) He also submits that the recovery of Rubber stamps of various parties including Customs officers are not directly relevant to the present case. He also submits that on cross-examination of the Inspector Shri N.K. Soni, it has been admitted by him that the lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have failed to reveal the source of procurement and documentary evidence supporting the price declared by them in the shipping bills. (e) He also submits that the entire investigation was commenced on prior information. (f) He also relies on the following decisions :- Om Prakash Bhatia v. CC, Delhi - 2003 (155) E.L.T. 423 (S.C.) Penguin (MFT) International v. CC, Cochin - 1988 (35) E.L.T. 388 (Tri.) B.R. Export v. CC, New Delhi - 2009 (239) E.L.T. 208 (Tri. - Del.) 6. In rejoinder, the learned Advocate submits that the case made against the appellant company in Gurgaon was decided in their favour by the original authority but reversed by the Tribunal and the matter is before the Hon ble Supreme Court. He also submits that the decisions relied upon by the department are not relevant to the facts of the present case. 7.1 We have carefully considered the submissions from both sides and perused the record. 7.2 We find that the investigation in respect of consignments of readymade garments and Welding Electrodes exported by the appellant company started pursuant to investigation commenced in Gurgaon. (We are not concerned with the said proceedings in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during investigation or during adjudication. The submission of the learned Advocate that the invoices and other documents were destroyed due to demolition undertaken by DMRC is not substantiated and the claim is not convincing to us. The appellants have chosen to justify the declared prices by producing quotations. As a merchant exporter who purchased the goods from various parties, they should have produced direct evidence by producing the purchase invoices which they have not done. Therefore, we are not convinced about the genuineness of the price for the consignments. In other words, the price declared by the appellants is not substantiated. We therefore, hold that there is mis-declaration of value of the export consignments of readymade garments. At the same time, the value recommended by Shri Sanjeev Kumar has to be treated only as an approximate one. The actual price could be anything in between. 7.6 Coming to the admitted export of Iron Welding Electrodes in the guise of Nickel Welding Electrodes, it is not in dispute that in the shipping bill, the appellants have declared the consignments as nickel electrodes and what was found was iron Electrodes. According to the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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