TMI Blog2004 (3) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 8.93 per pen. As it appeared that both exporters had overvalued the consignment with a view to claim inadmissible excess drawback, the consignments were examined and respective samples were drawn and sent for examination and evaluation. Market enquiry conducted showed that the Rotomac ball pen costs Rs. 4.30 per piece. It was also noticed that the manufacturer, M/s. Rotomac Pens Pvt. Ltd., had exported the pens to Bahrain, declaring the value at Rs. 1.97 per piece. Show cause notices were issued to both exporters on 9.7.1998 proposing confiscation of pens already allowed export provisionally, proposing penal action and proposing restriction of drawback claim on the basis of the price of Rs. 1.97 per pen. The Commissioner considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects have already been considered by the Commissioner and we can do no better than to reproduce his findings hereinbelow:- 13. ..... Both parties in their defence have challenged this ground by adducing evidences that the subject Ball Pens had been purchased by them from M/s. Rotomac Ball Pens Pvt. Ltd. at Rs. 6 per piece and such pens were specially made for export to Russia/CIS countries to withstand sub zero temperature. Thus the Ball Pens under export and in respect of which the market enquiry was conducted are different hence there is no justification to rely on the evidences disclosed in the Show Cause Notice. Moreover, neither the department made any enquiry in regard to sample pens, the sample drawn from the export consignment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lot back and to reimburse the full payment of the lot. That they had entered into contract with M/s. Rotomac Pens Pvt. Ltd. for purchase of Rotomac Ball Pens at Rs. 6 per unit and Rotomac Glassy Ball Pens at Rs. 10.50 per unit. It is further been submitted that purchase price of such Ball Pens under export was Rs. 6 per unit. In support they have submitted the photocopies of the memorandum of understanding, photocopies of the contract entered into by them with their customer, photocopies of the purchase invoice under' which the goods had been purchased, photocopies of their ledger indicating the payments made by them. 15. The defence has further submitted certificate from M/s. Rotomac Ball Pens Pvt. Ltd. dtd. 18.4.98, photocopies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in regard to their quality of their products specially with the locally purchased pens. It was further been submitted that the department has not conducted any other enquiries except relying on a invoice in regard to purchase of a local Rotomac Ball Pens not comparable to their export consignment and on another S/Bill in regard to Ball Pens which were neither similar nor identical to the goods under export and therefore are not relevant. It was submitted that both the evidence deserves to be discarded. The defence has also relied on Calcutta High Court's judgment in case of Collector of Customs, Calcutta v. Lexus Exports (P) Ltd. 1994 (69) ELT 228 (Cal). They have also given break up of the FOB price of Rs. 8.12 per piece. 16. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at both the aforesaid parries have not purchased the said Ball Pens at Rs. 6 per piece from M/s. Rotomac Pens Pvt. Ltd. The purchase price of the Ball pens under export is Rs. 6 per piece from a manufacturer, and the exporters generally incur other overheads such as export packing, transportation from Kanpur to Mumbai, handling expenses incurred for completing the export formalities such as port charges, clearing agent charges, other communications., administrative overheads. The FOB price at Rs. 8.12 per piece, therefore becomes reasonable. Moreover, the foreign exchange, sale proceeds of the goods exported by both the parties have since been received as is evident from the bank receipt. 7. No satisfactory reasons have been adduced to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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