2011 (3) TMI 1446 - AT - Customs

Export from SEZ area - Over invoicing - claim of drawback or DEPB - The goods were seized by the customs officers on the ground that the same were of very poor quality, cartons used were also of very inferior quality and did not bear any packing details and numbers were written by some semi illiterate person and value when compared with quality appeared to be disproportionately higher. - held that - at the time of initiation of transaction itself, appellants had planned to claim DEPB or drawback whichever is more beneficial to them and with that object only, the whole operation was planned. The fact that FOB value was realized does not take away or does not help the appellants to rebut the contention of the department that value was inflated by ST while supplying the garments to SCPL resulting in inflation of value by SCPL. - value was wrongly declared is correct and accordingly goods were liable to confiscation.

Issues Involved:
1. Allegation of over-invoicing and confiscation of goods.
2. Imposition of penalties on various parties.
3. Validity of market survey and valuation of goods.
4. Intention to claim DEPB benefits.
5. Final assessment by Central Excise.
6. Cross-examination of processors.
7. Proportionality of redemption fine and penalties.

Detailed Analysis:

1. Allegation of Over-Invoicing and Confiscation of Goods:
The appellant, M/s. Silk City Petrofils Co. Ltd. (SCPL), was accused of over-invoicing their export goods, leading to the confiscation of the garments covered by the shipping bills. The customs officers suspected over-invoicing due to the poor quality of goods and inferior packaging. The goods were provisionally released and subsequently exported. The customs' market survey indicated a significant discrepancy between the declared value (Rs. 88,47,337) and the ascertained market value (Rs. 12,06,600). The Tribunal upheld the customs' valuation, noting that the appellant's managing director, Shri S.T. Arora, had agreed with the market value determined by the customs.

2. Imposition of Penalties on Various Parties:
Penalties were imposed on SCPL, M/s. Sarthi Textiles (ST), Shri S.T. Arora, and Shri Shyamsunder Satyal. The Tribunal found that SCPL and ST, managed by the same person, inflated the value of the goods. However, the penalties were reconsidered based on the actual value of the goods and the circumstances of the case. The penalties were reduced as follows:
- SCPL: Rs. 50 lakhs to Rs. 10 lakhs
- ST: Rs. 30 lakhs to Rs. 5 lakhs
- Shri S.T. Arora: Rs. 25 lakhs to Rs. 2 lakhs
- Shri Shyamsunder Satyal: Penalty was removed as he was only an employee without evidence of deliberate involvement.

3. Validity of Market Survey and Valuation of Goods:
The customs conducted a market survey with three traders to ascertain the value of the goods. The appellant challenged the traders' expertise, but the Tribunal found that the traders were experienced in dealing with garments. The managing director's agreement with the customs' valuation further validated the market survey. The Tribunal upheld the customs' valuation and rejected the appellant's reliance on previous decisions where no market survey was conducted.

4. Intention to Claim DEPB Benefits:
The appellant argued that they did not intend to claim DEPB benefits as the shipping bills were not in blue color, and there was no disclaimer in the ARE-4 form. However, the Tribunal found that ST could have claimed DEPB or drawback benefits as per the exim policy. The Tribunal concluded that the appellants had planned to claim DEPB or drawback benefits, evidenced by the inflated value of the goods.

5. Final Assessment by Central Excise:
The appellant contended that the goods were already assessed by Central Excise, and the Commissioner could not reassess the value. The Tribunal found no evidence of such an assessment by Central Excise and rejected this claim.

6. Cross-Examination of Processors:
The appellant argued that the processors' statements were identical and they were not cross-examined. The Tribunal found that the processors agreed that the value was declared based on ST's advice. The managing director's acceptance of the price after ten months negated the need for cross-examination.

7. Proportionality of Redemption Fine and Penalties:
The Tribunal found the initial redemption fine of Rs. 8 lakhs to be high, considering the real value of the goods was Rs. 12 lakhs. The fine was reduced to Rs. 4 lakhs. The penalties were also reduced based on the actual value and the circumstances, ensuring they were proportionate to the offense committed.

Conclusion:
The Tribunal upheld the customs' findings of over-invoicing and the resulting confiscation of goods. However, the penalties and fines were reduced to be proportionate to the offense and the actual value of the goods. The Tribunal also removed the penalty on the employee, Shri Shyamsunder Satyal, due to lack of evidence of his involvement.

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