TMI Blog2007 (10) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants. In three shipping bills the goods declared were 'ladies maxis' and in one shipping bill the goods declared were 'ladies dress'. The FOB declared value of all the four shipping bills were Rs.68,44,500/- and Present Market Value (PMV) was Rs. 75,28,862/- and the exporter had claimed a drawback of Rs.8,21,340/-. The said shipping bills were examined on 31-7-2002 by the Shed Examiner and Let Export Orders were given on 2-8-2002, after making certain amendments in the price and other values consequent to which the total FOB value was reduced to Rs.37,79,100/- and PMV was reduced to Rs. 41,56,944/- due to which drawback claim got reduced to Rs. 4,53,492/-. On further intelligence the CIU found that the four consignments which were examined on 31-7-2002 were replaced by some other consignments on 12-8-2002. Statements were recorded of the CHA, Examining Officer and Shri H.S. Shirsat, Dy. Commissioner. On completion of the investigation show cause notices were issued directing the exporter i.e., the current appellant and all others to show cause as to why: (i) the garments found in the original lot covered under Shipping Bill Nos. 5237476, 5237478 and 5237477 all dated 30-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Revenue is that the garments which were stuffed in the containers were substituted by the persons. It is his submission that the said allegation is without any evidence. He submits that once Let Export Order is given, the consignment is handed over to the incharge of the docks. He submits that once the consignment is in the possession or in the control of the dock authorities, replacement of the consignment is impossible unless and until there is a collusion between the dock authorities and the appellant. He submits that the Revenue authorities have not recorded any statements to bring on record that there was collusion. It is his submission that only on presumption it is held that the goods have been replaced or substituted. 5. The learned Jt. CDR along with the SDR on the other hand submit that the appellants and the exporter had intended to avail the ineligible drawback by trying to export used and soiled cloth mis-declaring them as maxis and dress. It is the submission that statements recorded of CHA and others directly indicate that there was some kind of substitution having taken place. It is the submission that there was no satisfactory explanation to the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was some sort of collusion between the exporters and port authorities. In the absence of any direct evidence that such consignment was substituted by the appellant in the port area, we are unable to accept the proposition that the consignments which were cleared originally and for which Let Export Order was issued, was substituted. In the absence of any such evidence we are also unable to accept that the appellant was involved in substitution of the consignment. On this factual matrix we hold that the consignment cleared for export by the Examiner after reducing the FOB value and the PMV value, was the same as was found in the container. It is also on record that the said reduction in FOB and PMV value was done as per the direction of the Deputy Commissioner, Frere Basin. If that be so, it cannot now be said that there was replacement of the consignment. As regards the proposition of the learned Counsel for the appellant that the consignment having once assessed the FOB and the PMV having reduced by the assessing officer, unless there is an appeal by the Revenue against such assessment there cannot be any further re-assessment. The proposition is based upon the decision of the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under-valuation, may be rejected on the grounds of misdeclaration, but the rejection of application of Rules 5 6 thereafter cannot be accepted on that ground as arrived by the Addi. Commissioner in this case. Rule 5 has to be applied and if ruled out then Rule 6 has to be applied as Rule 6A specifically mandates. Since that has not been done by the original authority, that order is bad in law. We find therefore no reason to upset the order of CC (Appeal) is not upholding the order of Addl. Commissioner found by us to be bad in law. (c) The respondents had produced BE No. 4-6-81, dated 8-2-2003 and 4-6- 1992, dated 10-12-2003 where assessment was made as declared at the same values as in this case. They had also produced Computer print outs given by Customs House, for the Bills cleared at 0.11 USD 0.12 USD, 0.09 USD for lighters. Therefore, the value of 0.10 USD arrived at by the proper officer of Bombay Centre House initially, was arrived at 0.10 USD on comparative historical data available in Custom House and the same cannot be impugned by these proceedings. There are no grounds, therefore to set aside that value determination by the proper officer and CC (Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Collector failed to make a proper enquiry as to the market value of the goods and released the same after half-hearted adjudication. Halfhearted adjudications and failure to make proper market enquiry in this case is to be believed, how the proper officer loaded only 0.05 USD pcs is not explained in the appeal. There is no cause to upset the CC (Appeals) order on valuation. (f) We to set aside the proceedings initiated by the Addl. Commissioner find no infirmity in the reliance placed on decisions of Tribunal by ld. CC (Appeals)." 9. It can be seen from the above reproduced ratio, that the Division Bench was considering the very same provision under Section 17 as relied upon by the learned Jt. CDR and SDR and have come to the conclusion that, once an assessment which has attained finality cannot be challenged by alleging mis-declaration of nature of goods. If that be so, in the present case before us, where it is a case of export, the assessment have become final, as the shipping bills were assessed, FOB value and PMV was reduced by the assessing officer. If this assessment is not challenged by the Revenue by way of filing an appeal, it attained finality and by invoking th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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