TMI Blog2003 (5) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... avail higher quantum of duty entitlement than was due based on the correct value. The consignment comprising 6.50 lakhs ball pens had already been exported to Dubai. In the Adjudication order the Commissioner found that as against the declared export price of about Rs. 84 lakhs (US $ 1.9 lakhs at the rate of US $ 0.30 per ball pen) the clearance value through Dubai Customs was only US $ 13000 i.e. 0.02 per piece. Similarly, on the question of present market value of the goods, the Commissioner found that the pens had been purchased from their Calcutta manufacturers at a price of Re. 1 per piece or less, as against the declaration of present market value (PMV) of Rs. 10/- per piece in retail and Rs. 6 per piece in wholesale. DEPB benefit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted and delivered at Cochin from Calcutta by M/s. Assam Freight Carriers in Truck No. WB-23/2430. During the investigations the manufacturer suppliers of the goods, the transporter, clearing agent all confirmed these facts. The evidence obtained by the Customs authorities from Dubai Port, where the goods were delivered, showed that these goods were cleared at a declared value of 13,000 US dollars (0.02 US dollar per pen) by M/s. Pilot Trading LLC, Dubai. The details of the goods mentioned in the export documents filed at Cochin matched the goods declared in the clearance documents filed at Dubai. Thus, confirming that the goods exported by the appellants and cleared at Dubai were one and the same. The impugned order has been passed relyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. In the present appeal also the defence of the appellants is on the same line as before the adjudicating authority. It is also submitted that imposition of penalty for misdeclaring export value of goods is not permissible under Section 114 of the Customs Act. It is contended that mis-declaration in relation to value of export goods which are eligible to drawback only are liable to penalty under sub-section 3 of the Section and not export under DEPB. Learned Counsel also pointed out that Section 113(d) of the Customs Act was not attracted to the present case, since sub-section related to export of goods contrary to any prohibition. Learned Counsel submitted that since there was no prohibition in regard to export of ball pens, provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as neither the petitioner has indulged in any activity which is prejudicial to the conservation or augmentation of foreign exchange nor he has indulged in the smuggling of goods." 5. Learned SDR has submitted that Commissioner's findings are fully supported by documentary evidence on record and that misdeclaration of export value and market value of the goods with intent to claim DEPB credit hugely in excess of what is merited remain fully established. It has been stressed that the actual value of the exported ball pens remains established by their purchase price from the Calcutta manufacturers. Evidences showing transport of those pens from Calcutta Manufacturers to Cochin Port and the shipment of the goods at Cochin had proved beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation and the person liable to penalty. Learned DR also pointed out that the aforesaid judgment of the High Court of Punjab and Haryana related only to the question of preventive detention and has no application to the action under Customs Act for misdeclaration of the goods. Learned DR also relied on the decision in the case of Sheikh Mohd. and Others v. CC, Calcutta and Others reported in 1983 (13) E.L.T. 1439 (S.C.). 6. We have perused the records and considered the submissions made by both sides. We find that the Revenue's allegation relating to mis-declaration of FOB value and market value of the ball pens in question remain fully established through documentary evidence. The pens in question were purchased in the name of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 150% of the purchase price of the pen as present market value and allow DEPB credit at 50% of this value. If the DEPB credit was given at 21% of the FOB value, based on the purchase price of the pens, or US dollars 13000, which was the clearance price at Dubai, credit entitlement would have been very much less. We, therefore, do not find any reason for the appellants to be dissatisfied about the quantum of DEPB credit allowed in the impugned order. On the question of imposition of penalty, we find that a Larger Bench of this Tribunal has held that misdeclaration of export value is an offence under the provisions of the Customs Act. In the present case, export value declared by the appellants has been proved to be a massive overstatement. Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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