TMI Blog2017 (1) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the adjudicating authority is not substantially low, therefore the market enquiry was also not warranted. No material placed on record by the Revenue to suspect export price of the appellants and also the export is to non sensitive country i.e. USA. Therefore as per the guidelines Circular dt. 7.12.2001 there was no reason to suspect the declared export price of the appellants. The FOB price declared by the appellants are correct - appeal allowed - decided in favor of appellant. - Appeal No. C/822 to 827/04 - A/94670-94675/16/CB - Dated:- 21-12-2016 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri J.H. Motwani, Advocate with Shri Chirag Shetty, Advocate Ms. Sparsh Prasad, Advocate for Appellant Shri M.K. Sarangi Jt. Commr. (A.R) for respondent ORDER Per Ramesh Nair The fact of the case is that the appellant filed drawback shipping bills for export of Woven Powerloom Men s Shirt readymade garments. In all the shipments the shirts have been invoiced at 12.510 US$ per piece i.e. ₹ 530.42 per pc. FOB. The appellants claimed a total drawback of ₹ 24,78,450/- on a total FOB value of ₹ 1,58,75,590/-. The con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96, however having regard to the non-availability of the exported goods for confiscation. I impose a fine of ₹ 75,00,000/- (Rupees Seventy Five Lakhs only) on the exporters in lieu of confiscation: (ii) I impose a penalty on Shri Rajesh P. Motiani, partner of M/s. Parsons Overseas ofRs.25,00,000/- under Section 114 (i) of the Customs Act, 1962; (iii) I also impose a penalty on Shri Murli P. Motiani partner of M/s. Parsons Overseas of ₹ 25,00,000/- under Section 114 (i) of the Customs Act, 1962; (iv) I impose a penalty on Shri Paresh P. Motiani, partner of M/s. Parsons Overseas of ₹ 25,00,000/- under Section 114(i) of the Customs Act, 1962; (v) I impose a penalty of ₹ 25,00,000/- under Section 114(i) on Smt. Renu Motiani, partner of M/s. Parsons Overseas the Customs Act, 1962; (vi) I also impose a penalty of ₹ 25,00,000/- under Section 114(i) of the Customs Act, 1962 on Smt. Sunita Motiani, partner of M/s. Parsons Overseas; (vii) I hold the market price of the exported shirts at ₹ 241.70 per shirt and order release of drawback, if any, based on the said market price . Being aggrieved by the said impugned order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent found that the similar type of shirt is available at ₹ 100/- per piece in the retail market. But the same was not taken into account while determining the price of ₹ 241.70. This shows that the only basis of reducing the declared price is the price on cost basis. The department did not adduce any piece of evidence, which shows that the price declared by the appellant is not correct. He submits that the export price declared by the appellant can only be rejected, if any, tangible evidence is brought on record to establish that the goods were not sold at ₹ 530.42 per piece but sold below the said price. In the present case no such evidence was available. He submits that the market enquiry was also improper as it could not be established that the shirt of which the price was obtained in the market enquiry is not of the identical quality of shirts exported by the appellants. He further submits that the lower authority has heavily relied upon the decision of M/s. Om Prakash Bhatia judgment of the Hon ble Supreme Court. As per the facts of the present case, the judgment is not applicable for the reason that in the said judgment the substandard goods were exported an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- but taking a lenient view and doing justice, the adjudicating authority has taken price on the basis of manufacturing cost of the shirt which came to ₹ 241.70. Therefore there is no error in the order for determining the said price of export shirt. The adjudicating authority adopting the cost method for determining the price of ₹ 241.70 is correct. 4. We have carefully considered the submissions made by both the sides, we find that the undisputed fact is that the order of the export was procured at the price i.e. ₹ 530.42 which has been accepted by the USA based buyer. The entire bill amount of export has been realized by the appellants. The same FOB value was declared before the AEPC and Earnest Money Deposit (EMD) of 5% was also taking the price of ₹ 530.42 therefore on the basis of this fact the export price of the appellants cannot be doubted. The department has fixed the price of ₹ 241.70 only on the basis of costing of the export goods, which in our view is not supported by any statutory provision particularly when the transaction value of the goods is available and the entire transaction has been concluded on the basis of that export price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct, as normally the drawback rates do not exceed 15-16%. 3. The issue has been examined in the Board. It has been decided that there is a need amongst the field formations to exercise proper discretion and vigilance while initiating PMV enquiries. PMV enquiry should be ordered only in such cases where prima facie the restrictions placed by Section 76(1)(b) would be violated. PMV enquiries which do not yield any desirable results would only raise the transaction time and transaction cost of the exporters, which should be avoided. 4. The contents of this Circular may be brought to the notice of the operational staff in the Custom House by the concerned Commissioners. From the reading of the above Circular it is seen that the market enquiry is not proper in routine and the same can be resorted only where the enquiry yield money multiples of the PMV. In the present case, even the cost price arrived by the adjudicating authority is not substantially low, therefore the market enquiry was also not warranted. In the Circular No. 77/2001-Cus. dt. 7.12.2001 the Board has clarified that the drawback rates and caps of garment is sufficient to take care of any attempts by the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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