TMI Blog2005 (11) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... on undertaken by the Customs for the licensing authority. There is no provision under the Customs Act for levy of penalty for mis-declaration of PMV. As regards the present case, the Department has arrived at the PMV of the goods to be exported on the basis of expert opinion of HMT. Moreover, the statements of Shri Shantilal Jain and Shri G. Vimal Bhandari testified the fact that the watches have been purchased at a lower price compare to what has been declared in the shipping bill. Prima facie, there is evidence of inflation of the value of the goods declared in the shipping bill. However, the appellants contended that they have realized the entire Foreign Exchange. Revenue has not established that similar or identical goods have been expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Quartz Analog Watches under DEPB Scheme, prescribed under Para 7.25 of the Exim Policy 1997-2002 by over-invoicing the goods to claim undue benefit under the said scheme. The consignment was detained at Export Terminal of Air Cargo Complex. Certain incriminating documents were seized from the premises of the appellants. The main charges against the appellants are that the Quarts Analog Watches were purchased at Rs. 73/- per piece but the value declared to the Customs was US $ 32.50 per piece. The expert opinion of the M/s. HMT Ltd. fixes the value of the watches at Rs. 230/- per piece. Hence it was alleged that the inflated value had been given for getting undue benefit under the DEPB Scheme. The Original Authority in his order dated 3-4-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Circular provides that the only Commissioner can make enquiry to deny the benefit if the circumstances mentioned in Para 3 exists. (iv) There has been failure to note that the value in the shipping bill was the export value on the basis of which export proceeds in convertible Foreign Exchange had been received. Hence Section 113(d) will not apply and consequently penalty under Section 114(i) does not arise. (v) The opinion dated 3-3-2000 of M/s. HMT was assailed on the following grounds:- (a) The sample drawn and valued was of a particular model only while the export consignment contained assorted models. (b) The sample relating to shipping bill No. 4891/24-2-2000 cannot be made applicable to all the consignments from which samples we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (xii) The lower authority has grossly erred in ignoring the mandate under Section 14 of the Customs Act, 1962, by adopting the domestic value of the watches as determined by an opinion of M/s. HMT Ltd. (xiii) For the earlier consignment, misdeclaration cannot be assumed on the basis of the mis-declaration notice in the present consignment in terms of decision of the Tribunal in Well Knit Apparels (P) Ltd. v. C. C. - [1999 (106) E.L.T. 431]. (xiv) The misdeclaration is not proved and therefore, mens rea cannot be said to be present. The confiscation of the export goods not having been invoked in the show cause notice, the penalty under Section 114(i) cannot be imposed. (xv) There has been failure to take judicial note of the fact that the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be verified by the proper officer of the Customs at the time of examination of goods as is done in the case of drawback shipping bills. Where upon examination of goods the examining officer finds that in view of the quality or condition of the goods prima facie the PMV declared, or the f.o.b. price, is unduly high, the matter may be referred to the Assistant Commissioner (Export) along with sample of goods wherever possible. In such cases the PMV may be verified/determined through market enquires, or by such process as the Asstt. Commissioner (Customs) may direct. 5. Before making such enquiries, the Asst. Commissioner (Export) must satisfy himself as to the necessity for causing such enquiries. The purpose of such enquiry is to ensure th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtments are collected by the Customs. Similarly, the ascertainment of PMV is one such function undertaken by the Customs for the licensing authority. There is no provision under the Customs Act for levy of penalty for mis-declaration of PMV. As regards the present case, the Department has arrived at the PMV of the goods to be exported on the basis of expert opinion of HMT. Moreover, the statements of Shri Shantilal Jain and Shri G. Vimal Bhandari testified the fact that the watches have been purchased at a lower price compare to what has been declared in the shipping bill. Prima facie, there is evidence of inflation of the value of the goods declared in the shipping bill. However, the appellants contended that they have realized the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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