TMI Blog2005 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... en in S. No. 105. Under these circumstances, the impugned goods are, prima facie, classifiable under S. No. 6. The revenue urges that the issue is clinched by the clarification given by DGFT vide its letter dated 7-12-2001 as decided in their meeting. In our view, that clarification cannot have retrospective effect. Moreover, the records do not show any suppression of facts. The goods had been examined by the Customs officers and allowed to be exported. Hence, there is no justification for invoking the longer period to demand duty. Another important point is that the Customs authorities do not have any jurisdiction to reduce the excess credit taken. The DGFT authorities have the proper jurisdiction. Until and unless the DGFT takes action we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants claimed higher rate of DEPB under S. No. 6 instead of claiming under S. No. 105. The DEPB credit was also utilised by the appellants towards import of raw materials for CIF value of Rs. 10,56,436/-. There was an allegation of suppression of facts against the appellants, as it appeared that they had not mentioned that the export products, namely aluminium utensils were PTFE coated on the inside surface and hard anodized on the outside surface. Hence, their action resulted in claiming of excess DEPB credit amounting to Rs. 3,93,743/-. The adjudicating authority after disallowing the excess DEPB credit demanded differential duty of Rs. 3,93,743/- under proviso to Section 28(1) of Customs Act, 1962. Interest under Section 28AB wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss that is done, the Customs authorities cannot hold that excess credit has been availed by the appellants. (v) Till now the DGFT authorities have not initiated any proceedings against the appellants. Our attention was drawn to DGFT's letter dated 4-9-2002 addressed to the Joint DGFT, Bangalore, Cochin, Mumbai etc., wherein in a dispute regarding excess DEPB credit taken in respect of marine exports it was decided that regional licensing authorities may not issue any further SCNs and no action be taken on SCNs that already stand issued. He said no further action had been taken since the issue of that letter. In this case also, unless the DGFT takes action to reduce the DEPB credit taken, Customs cannot do anything. He relied on the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular 15/97-Cus., dated 3-6-97 wherein the GOI, Ministry of Finance has clarified that the role of customs authorities should be confined to verification of correctness of exporter's declaration regarding description, quantity and FOB value of the export product. It will be for the licensing authorities granting credit to ensure that credit is permitted by them at correct rate notified by the DGFT. 4. The learned JCDR said that what is demanded is not the DEPB credit, but the Customs duty. She said that the excess DEPB credit taken had been used for payment of duty on imported goods. Since the excess DEPB credit is not admissible, to that extent there is non-payment of duty on the imported items. Hence what is demanded under Section 28 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. In our view, that clarification cannot have retrospective effect. Moreover, the records do not show any suppression of facts. The goods had been examined by the Customs officers and allowed to be exported. Hence, there is no justification for invoking the longer period to demand duty. Another important point is that the Customs authorities do not have any jurisdiction to reduce the excess credit taken. The DGFT authorities have the proper jurisdiction. Until and unless the DGFT takes action we cannot even hold that the credit taken is irregular. In view of these facts, we cannot hold that there is short levy of Customs duty in respect of the goods imported by paying duty through the DEPB credit taken. The case laws cited by the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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