2017 (1) TMI 410 - AT - Customs

Duty drawback - overvaluation of export of Woven Powerloom Men s Shirt readymade garments - FOB price as declared by appellant - Held that - Any price other than the sale price can be resorted only in a case where the export price has been proved to be a wrong price based on certain evidence. In the present case, as regard the declared export price i.e. ₹ 530.42. There is also not a whisper that any money laundering is involved due to alleged over valuation of the export goods - It is also observed that since the export in the present case is regulated under a policy wherein a export quota is fixed for USA under which the entire detail of the export has to be disclosed to the concerned authority for obtaining the quota. For this reason also the declared price of the export cannot be doubted. Board s Circular No. 74/2009-Cus. dt. 7.9.2009 clarifies that the market enquiry is not proper in routine and the same can be resorted only where the enquiry yield money multiples of the PMV - In the present case, even the cost price arrived by the adjudicating authority is not substantially low, therefore the market enquiry was also not warranted. No material placed on record by the Revenue to suspect export price of the appellants and also the export is to non sensitive country i.e. USA. Therefore as per the guidelines Circular dt. 7.12.2001 there was no reason to suspect the declared export price of the appellants. The FOB price declared by the appellants are correct - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Determination of the declared export value of the goods.
2. Legitimacy of the imposed penalties and fines.
3. Validity of the market enquiry and cost-based valuation method.
4. Applicability of relevant legal precedents and circulars.

Detailed Analysis:

1. Determination of the Declared Export Value of the Goods:
The appellants declared an export value of ?530.42 per shirt, claiming a total drawback of ?24,78,450/- on a total FOB value of ?1,58,75,590/-. The adjudicating authority rejected this declared value, determining the cost price of the shirts to be ?241.70 per piece based on raw material costs, stitching charges, and other expenses. The authority alleged that the appellant over-invoiced the shirts to avail a higher drawback and secure a quota under the FCFS system for exporting to the USA. However, the appellants argued that the export value should be based on the transaction value as per Section 14 of the Customs Act, 1962, and not on a cost construction method. The Tribunal found that the declared export price was accepted by the USA-based buyer and the entire transaction was concluded based on this price, thus validating the appellants' declared export value.

2. Legitimacy of the Imposed Penalties and Fines:
The adjudicating authority imposed fines and penalties under Sections 113 and 114 of the Customs Act, 1962, including a fine of ?75,00,000/- in lieu of confiscation and penalties of ?25,00,000/- each on the partners of the appellant firm. The appellants contended that overvaluation was not established, and thus, neither they nor the co-appellants were liable for any penalties. The Tribunal agreed, stating that the overvaluation was not proven with tangible evidence and that the declared export price was correct. Consequently, the penalties and fines imposed were deemed unjustified.

3. Validity of the Market Enquiry and Cost-Based Valuation Method:
The adjudicating authority conducted a market enquiry, finding similar shirts priced at ?100/- per piece in the retail market, but ultimately determined the cost price to be ?241.70 per shirt. The Tribunal noted that the market enquiry was irrelevant as it did not align with the cost-based valuation, which lacked statutory support. The Tribunal emphasized that the declared export price should only be rejected if proven incorrect with substantial evidence, which was not the case here. The Tribunal also referenced Board's Circular No. 74/2000-Cus., which advises against routine PMV verification unless the declared FOB value is significantly higher than the PMV.

4. Applicability of Relevant Legal Precedents and Circulars:
The appellants cited various judgments and Board's Circulars to support their case. The Tribunal found that the adjudicating authority's reliance on the Supreme Court judgment in Om Prakash Bhatia was misplaced, as the facts were not identical. The Tribunal also highlighted Circular No. 77/2001-Cus., which discourages indiscriminate market verification of garment exports unless there is a blatant export of substandard goods to sensitive destinations. The Tribunal concluded that the declared export price was valid and the cost-based valuation by the Revenue was without basis.

Conclusion:
The Tribunal set aside the impugned orders, validating the declared export price of ?530.42 per shirt and nullifying the penalties and fines imposed by the adjudicating authority. The appeals were allowed, emphasizing that the declared export price was correct and supported by the transaction's completion and acceptance by the foreign buyer.

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