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TMI Blog2007 (5) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... the Present Market Value (in short the 'PMV')declared is not more than 150% of the AR 4 value. Accordingly the order passed by the Commissioner of Customs (Post) Kolkatta was set aside. 2. Background facts in a nutshell are as follows: 3. The Respondent Company which is engaged in the business of computerized printing exported for the first time consignments of steel balls of a total declared value at Rs. 14.63 crores to one M/s. Ria Multiple Enterprises of Malaysia under Duty Entitlement Pass Book (in short the 'DEPB') Scheme. Incidentally, the consignee is also a dealer of computer and information technology based products who also acts as General Insurance Agent. Exports were made under DEPB scheme and a claim of Rs. 3.20 crores was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular dealers of Steel balls in as much neither the exporter nor the local suppliers could produce any piece of evidence of sale of such Steel Balls: to any other party in India or abroad excepting the production of evidence of sale by M/s. S.F. Forging to one M/s. Arlun Automobile, that too for the purpose of export under DEPB scheme. (x) Surprisingly the suppliers had received only about 1/4th or 1/3rd of the so called sale value amount but did not receive huge sum of money which was due as balance of payment towards supply of goods for over an year. (xi) Based on the aforesaid revelation, the declared PMV as well as the FOB value seems to be very high compared to the actual market value of the goods. (xii) It appears that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attracted to venture into steel balls export and also took the risk of exporting to the party on credit which is a big risk. (iii) The payment was to be made within 60 days and the payments were delayed by over 6-18 months. (iv) 90% of the payment was already received and the balance was to be cleared by 15-4-01 i.e. after the enquiry started in the year 2000. (v) He does not have any idea about the international price of steel balls. (vi) He received major payments from buyer only after September 2000 and he cleared the claimed outstandings of local suppliers. (vii) He was aware of the process or method used for checking the quality of the steel balls. But he had engaged an expert. 7. On the basis of the aforesaid materials the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the market enquiry only. I, therefore, accept the proposal of ascertaining the PMV and the FOB value as given in the show cause notice." 10. The Commissioner accordingly inter alia held as follows: "The subject goods exported under claim of DEPB credit did not correspond to the declaration made regarding the same on the shipping bills in respect of the value and DEPB benefit, since it was declared on the shipping bills that the benefit under the DEPB scheme would not exceed 50% of the present market value. The same should be deemed to be prohibited in terms of Rule 11 and 14 of the Foreign Trade (Regulation) Rules, 1993 read with Section 3(3) of the Foreign Trade (Development & Regulation) Act, 1992 and Section 11 of the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the evidence tendered by the company from which it can be clearly inferred that there has been a misdeclaration and misstatement only with the object to boost the value to get higher DEPB benefit. The entire transaction is vitiated by misstatement, misdeclaration and suppression of material facts which has not been considered by the Tribunal. 15. It is pointed out by the learned counsel for the appellant that absolutely no reason has been indicated by the Tribunal to set aside the elaborate order passed by the Commissioner. There were clear findings of over invoicing. So far as Circular No. 69/97 is concerned, it only delineates the general principles. The fraudulent transaction was clearly established. Approach of the Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to various aspects to conclude about over-invoicing. The applicability of Circular No. 69/97 would depend upon the factual scenario of a particular case. 20. In the instant case, what the Tribunal appears to have done is to refer to the arguments of parties and then came to abrupt conclusions without-discussing in detail as to how the conclusions of the Commissioner were erroneous. That having not been done the order is vulnerable. Accordingly, we set aside the order of the CEGAT and remit the same to it for fresh adjudication. It is to be noted that present CEGAT is known as Customs Excise and Service Tax Appellate Tribunal (in short 'CEGAT'). The appeal are allowed to the aforesaid extant. We express no opinion on merits of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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