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TMI Blog2014 (5) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation was conducted. During investigation, Shri M. Vasudevan, Proprietor admitted that he had purchased Saber Executive Ball Pen at Rs.7 per piece and its MRP was Rs.9 per piece and Saber Arjun Ball Pen @ Rs.1.15 per piece and its MRP was Rs.3 per piece. Thus he admitted a mis-declaration in the Present Market Value (PMV) as declared in the Shipping Bills and requested for provisional assessment. Accordingly, the goods were allowed to be exported after provisional assessment. 3. The facts as ascertained by Revenue are as given below:- SB No and Date FOB Value Declared PMV Declared DEPB Claim FOB Determined DEPB Assessed (Rs.) (Rs.) (Rs.) (Rs.) (Rs.) 2446 17.8.2000 22,43,790 24,68,169 4,48,758 7,98,450 1,59,690 2447 17.8.2000 32,80,918 36,09,009 6,56,183 4,72,650 94,530 2448 17.08.2000 32,80,918 36,09,009 6,56,183 4,72,650 94,530 Total 88,05,626 9,68,6187 17,61,124 17,43,750 3,48,750 4. Since it appeared that the exporter had mis-declared Present Market Value (PMV) and FOB value and claimed abnormall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not in accordance with para 7.36A of Public Notice No.10/97 dt. 21.5.97 issued by DGFT, Ministry of Commerce, Govt of India. The said paragraph is reproduced below :- In respect of products here the rate of credit entitlement under DEPB Scheme comes to 15% or more the amount of credit against each such export product shall not exceed 50% of the Present market Value (PMV) of the export product. At the time of export, the exporter shall declare on the shipping bill that the benefit under DEPB Scheme against the export product would not exceed 50% of the PMV of the export product. Such a declaration shall be required only in cases where rate of credit under DEPB is 15% or more. 7. He points out that if DEPB entitlement is calculated at 15% of the FOB, entitlement works to Rs.13,20,843/- which is only slightly more than 50% of PMV which comes to Rs.12,03,750/- Therefore, DEPB credit should have been restricted to Rs.12,03,750/- instead of Rs.4,81,500/- as calculated in the adjudication order. During the hearing, the Counsel for appellant was arguing mainly on the ground that confiscation and consequent p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 issued by the Board does not purport to restrict the statutory provisions of the Customs Act, wherever they may be applicable. However, in order to remove doubts or ambiguity, if any, in Para Nos. 6 and 7 of the Circular No. 69/97-Cus. (as amended by Circular No. 79/98, dated 22-10-1998 ). It is being further amended to include the following provision in paras 6/7. 3. Where Commissioner of Customs is satisfied that the enquiry for determining the Present Market Value of the goods, has to be extended for reasons involving fraud/collusion/wilful misstatement, or suppression of facts, which shall be recorded by him in writing, he may extend the period of three months till such further period as is deemed necessary. In such cases, para 7 of Circular No. 69/97-Cus.was never intended to be applicable. In such cases the consignment should be allowed provisional clearance and the shipping bills should also be assessed provisionally. Such shipping bills will not be entitled to DEPB scrip till the market enquiry is completed, and the provisionally assessed shipping bills are finalised. Where the Present Market Value declared by the exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duty, learned Standing Counsel appearing for the Department relied on the judgment of the Supreme Court in Om Prakash Bhatia v. Commissioner of Customs, Delhi reported in 2003 (155) E.L.T. 423, and contended that when import is permissible on satisfaction of certain conditions, the violation of the same will make the goods imported as prohibited goods within the meaning of Section 2(33) of the Act, which reads as follows :- 2(33) 'Prohibited goods' means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. 6. After hearing both sides and after considering the statutory provisions, we do not think the appellant, as a matter of right, can claim release of the goods on payment of redemption fine and duty. Even though gold as such is not a prohibited item and can be imported, such import is subject to lot of restrictions including the necessity to declare the goods on arrival at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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