TMI Blog2007 (11) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... bills filed by the CHA have been noted in the order. The Commissioner examined the various pleas raised by the appellants and the CHA and after due consideration rejected their pleas and also did not accept their declared value. The goods were re-valued after final assessment and the value was fixed at Rs.16 per meter for DEPB purposes. The nominal penalty of Rs. 5,20,000/- has been imposed on M/s. Siddarath Exports under Section 114(i) and Section 114(iii) of the Customs Act, 1962. The appellants had declared the value in respect of all the shipping bills amounting to Rs. 1,33,96,883/-. The findings recorded by the Commissioner from Paragraph 23 are reproduced herein below. FINDINGS 23. M/s. Siddharth Exports have not bothered to reply to the Show Cause Notice. 24. Intimations were sent to M/s. Siddharth Exports for personal hearing on 8-7-2005, 18-7-2005, 2-8-2005 and 10-10-2005. Intimation was also got served through the jurisdictional Central Excise authorities. However, the exporter did not co-operate with the adjudication proceedings and chose not to appear before the adjudicating authority. 25. I have gone through the records of the case and the submissions made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigations, for DEPB purposes. Penalty under section 114 of the Customs Act, 1962 was also proposed in the SCN. Opportunities given for Personal Hearing were not availed by the noticee. Enough opportunities have been given to meet the ends of the principles of natural justice. 28. According to Para 4.3 of the EXIM Policy, the objective of Duty Entitlement Pass Book scheme is to neutralize the incidence of Customs duty on the import content of the export product. The neutralization shall be provided by way of grant of duty credit against the export product. From time to time, on the issue of entitlement of DEPB credit vis-a-vis the FOB/PMV has been considered and clarified by the Central Board of Excise and Customs, as in many cases the PMV was found to be much lower than the declared FOB value. Vide Para 5 of circular No. 77/2002-Cus. dated 27-11-2002, the CBEC had clarified that "In those cases where it is conclusively proved through the investigations that the FOB value has been artificially inflated/manipulated by the exporter to avail of unintended higher DEPB benefits, the DEPB credit entitlement shall be worked out only on the PMV and not FOB value" 29. Circular No. 69 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and experts in their own right, their views are to be accepted as representing the general market value of the goods. The Textile Committee, Kannur, a Government of India Agency, while forwarding the test results, indicated the price of Rs 9.50 per metre of Poonam quality fabrics, traded in Surat textile market, having a weight per metre of 56 grams as a comparison for valuation. Hence I find that the value proposed in the SCN is reflective of the market price of the goods, and thereto highest of the general value is proposed for determination of assessable value for DEPB purpose. 32. As regards the statement given by Shri Kamal Kishore Kapuria at the time of investigation and the documents submitted in justification of the high value of the fabrics, I find that the goods at the point of export at Custom House was inspected and samples were drawn which were subjected to test/value verification. The goods were found to be of low quality fabrics not used in apparel manufacture but fit for other miscellaneous uses. The show cause notice discussed that the goods tendered for export were not representative of the ARE-1 forms submitted with respect to the weight ascertained based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. Accordingly, it would be fair, if the goods are finally assessed at Rs. 16/- per metre for DEPB purposes. 36. From the above, it is clear and apparent that M/s. Siddharth Exports had wilfully procured inferior fabric from the market where the maximum price of such fabric was Rs. 13/- per metre and than at the time of export, deliberately overpriced the same at Rs. 60/- per metre. Mens rea on their part is, therefore, clearly established. 37. On the basis of the above findings, I pass the following order; ORDER The goods covered under Shipping Bills No. 715 dated 28-3-2003, 1173342 and 1173343 both dated 17-2-2003 and having a total declared value of Rs. 1,33,96,883/- are liable for confiscation under Section 113(d) and 113(i) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development Regulation) Act, 1992. However, the goods are not available for confiscation, as already exported. I order the final assessment of the Shipping Bills above at a value of Rs. 16 per metre for DEPB purposes. Taking all aspects into consideration, I impose a penalty of Rs. 5,20,000/- (Rupees Five lakhs twenty thousand only) on M/s. Siddharth Export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opportunity to contest the matter. Therefore, there is no violation of Principles of Natural Justice. He submits that this very issue was subject matter of decision in the case of M/s. Olympia Overseas Others heard by President's Bench by Final Order Nos. 1123 1124/2007 dated 14-9-2007 [2008 (223) E.L.T. 114 (T)]. He submits that the facts being identical, this judgment having been distinguished all facts of the citations referred by the learned Counsel should be accepted. He submits that no benefit has been given even with regard to the penalty. He places a copy of the order. 4. The learned Counsel again reiterates his submissions. 5. We have carefully considered the submissions and have gone through the impugned order. The impugned order is a detailed order discussing the entire evidence on record. The manner in which the mis-declaration has been done and the conditions in which the goods had been packed in the containers has been revealed. As per the detailed investigations, the goods were in damaged condition and were of inferior quality. The investigations with manufacturers, processors and also market enquiries were done and it was found that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the DEPB Scheme provisionally after drawing samples. There is clear evidence that the impugned goods are inferior. It is evident not only from the test reports, but also from market inquiries conducted in Surat. In these circumstances, we cannot accept the contention that the Commissioner has fixed the value in an arbitrary fashion. In terms of para 4.41 of Chapter IV of the Foreign Trade Procedure, in respect of products where the rate of credit entitlement under DEPB Scheme comes to 10% 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. The Government of India is very much conscious of the mis-use of the scheme and, therefore, the credit has also been restricted as mentioned above. We have also gone through the plethora of case laws furnished by the learned Departmental Representative. The Hon'ble Apex Court in the case of Om Prakash Bhatia v. CC, Delhi, 2003 (155) E.L.T. 423 (S.C.), has dealt with the over invoicing of export goods, it has been held that, when the importation or exportation, of the goods are subjected to certain prescribed conditions to be fulfilled either before or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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