2010 (11) TMI 181 - AT - Customs

DEPB - Misdeclaration of quantity and value - Demand - Confiscation - It was settled that when the Licensing Authority had not taken any steps to cancel the license, then the DEPB License issued continued to be valid and could not questioned by the Customs authority - The CHA who handled the impugned exports for the appellants and the cargo executive of the said firm denied that an exporter could under declare the weight in the Shipping Bills - In any case, by dividing the total weight of the consignments by lower of the two weights of steel pegs, a higher number of steel pegs is found as exported - The details of Shipping Bill No. 1069903 dated 15-1-2002 were relied on by the Commissioner to find that with reference to the unit price and the actual number of steel pegs exported, the appellants had fraudulently obtained an excess DEPB credit of Rs. 4,14,065 - Commissioner s finding as regards mis-declaration of the number of steel pegs exported by the appellants during the material period in all the Shipping Bills is correct - The mis-declaration is wilful and the impugned order of penalty is justified - Appeal is rejected

Summary

Issues Involved:
1. Mis-declaration of the quantity and value of steel pegs exported.
2. Determination of the correct export value and DEPB credit.
3. Legality of the recovery of excess DEPB credit by Customs authorities.
4. Imposition of penalty on the exporter.

Issue-wise Detailed Analysis:

1. Mis-declaration of the Quantity and Value of Steel Pegs Exported:
The Commissioner found that M/s. Veeyem Exports mis-declared the quantity of steel pegs exported. The investigation revealed discrepancies between the declared and actual quantities. The declared quantity was 2,06,23,769, whereas the actual quantity was determined to be 87,55,555. The Commissioner concluded that the declared value of Rs. 28,32,80,585/- was inflated and the actual export value was Rs. 2,23,26,665/-. The investigation included statements from various manufacturers and distributors, and a report from Dubai Customs indicating a lower value for the consignments. However, the Commissioner did not find conclusive evidence of inflated value and accepted the declared unit prices of Rs. 9.50 and Rs. 14.30 for larger and smaller pegs, respectively.

2. Determination of the Correct Export Value and DEPB Credit:
The Commissioner re-determined the total number of steel pegs exported and the corresponding DEPB credit. The actual number of steel pegs exported was found to be 83,79,092 with an FOB value of Rs. 11,76,78,302/-. The admissible DEPB benefit was recalculated as Rs. 1,52,98,175/-. The Commissioner considered various pieces of evidence, including market surveys and statements from manufacturers, to conclude that the declared prices were reasonable. The appeal by the Revenue challenged this finding, arguing that the Commissioner ignored the lower values declared to Dubai Customs and the failure of the exporter to provide procurement details. However, the Tribunal upheld the Commissioner's decision, finding it inherently sound and based on thorough examination.

3. Legality of the Recovery of Excess DEPB Credit by Customs Authorities:
The appeal by the exporter contested the recovery of Rs. 4,14,065/- as excess DEPB credit, arguing that Customs authorities had no jurisdiction to alter DEPB credits granted by the DGFT. The Tribunal agreed, citing several judicial authorities that held Customs authorities were not competent to curtail DEPB credits. The Tribunal set aside the demand for recovery of the DEPB credit, noting the absence of machinery provisions in the Customs Act for such recovery.

4. Imposition of Penalty on the Exporter:
The Commissioner imposed a penalty of Rs. 10,00,000/- on the exporter under Section 114 of the Customs Act for mis-declaration of the quantity of steel pegs. The Tribunal found that the Commissioner correctly determined the number of steel pegs exported based on the total weight of the consignments and the minimum weight of a steel peg. The Tribunal upheld the penalty, noting that the mis-declaration was willful and rendered the goods liable for confiscation under Section 113(i) of the Customs Act. The Tribunal rejected the exporter's appeal, affirming the penalty imposed by the Commissioner.

Conclusion:
The Tribunal upheld the Commissioner's findings regarding the mis-declaration of quantity and value, the determination of export value and DEPB credit, and the imposition of penalty. However, it set aside the recovery of excess DEPB credit, ruling that Customs authorities lacked jurisdiction for such recovery. The appeals by both the Revenue and the exporter were rejected, except for the part concerning the recovery of DEPB credit.