2008 (10) TMI 214 - AT - Customs

Duty Drawback fraud recovery of erroneous drawback - The Appellant s plea, on the other hand, is that just on the basis of the declaration filed by the consignee before the Customs authorities of the importing country, it cannot be concluded that the Appellant have overinvoiced the goods, when no market inquiry for ascertaining the PMV of the goods was conducted and full remittance for these goods exported has been received Held that market inquiry for ascertaining the PMV could not be conducted as neither any sample of the goods exported was available nor Appellant s firm in spite of being repeatedly asked, produced the purchase bills for the socks and the fabrics. The price declared by the consignees before the Dubai Customs, has, therefore, to be seen in the background of the Appellant s inability to either produce the purchase bills of the socks and fabrics used for making the garments exported demand and penalty confirmed fine in lieu of confiscation set aside since the goods were not available for confiscation.

Summary

Issues: Allegation of overinvoicing exports, demand of drawback, confiscation of goods, penalty imposition, admissibility of drawback, market price valuation, misdeclaration of goods, redemption fine in lieu of confiscation.

Analysis:
1. The Appellants were accused of overinvoicing exports of "Ready-made garments" and "Socks" to UAE to fraudulently claim a drawback amounting to Rs. 21,55,788 during Oct '2001 to Jan '2002. The Commissioner confirmed the demand of drawback under Customs Act, 1962 and imposed penalties and fines. The Appellants exported goods under drawback claims, but discrepancies arose when comparing import values declared by consignees in UAE with FOB values declared by the Appellants in shipping bills.

2. The Appellants argued that proper scrutiny was done, and export proceeds were received. They questioned the lack of material evidence challenging prices and the absence of consignee declarations. They emphasized the need for market price inquiries and highlighted discrepancies in consignee import bills compared to FOB values in shipping bills.

3. The Departmental Representative contended that the Appellant's firm was opened fraudulently to claim undue duty drawbacks. They pointed out the inability to provide supplier details and fabricators' information. The Department relied on the Supreme Court's judgment to reopen assessments in fraud cases and imposed redemption fines even if goods weren't physically available for confiscation.

4. The Tribunal analyzed the dispute regarding overinvoicing of garments and socks, considering the declared FOB values and drawback claims. Due to the Appellant's failure to produce purchase bills and fabric details, the Tribunal found the goods were overinvoiced to claim higher drawbacks. The Tribunal upheld the Commissioner's decision on fraudulently claimed drawback recovery and penalty imposition but set aside the redemption fine due to unavailability of goods for confiscation.

5. In conclusion, the Tribunal upheld the demand of fraudulently claimed drawback and penalty imposition while setting aside the redemption fine imposed on goods not available for confiscation. The appeal was disposed of accordingly.