2017 (11) TMI 1410 - AT - Customs

DEPB benefit - mis-declaration of export value in shipping bills - principles of natural justice - case of appellant is that the Original Authority not adhering to the remand direction of the Tribunal while deciding the case afresh - Held that - all the major points raised by the appellants have been dealt with by the Original Authority. None of the significant issues raised by the appellant with reference to purchase of impugned goods, documentation and legal points regarding cross-examination and reliance placed by the Revenue on various evidences collected during investigation have been left out by the Original Authority - there are no reason to interfere with the findings of the Original Authority on merits of this case. Penalty - ineligible DEPB benefit - Held that - considering the quantum of improper benefit sought to be derived, as mentioned above, the penalty is on the higher side. Accordingly, we hold that the penalties can be reduced to ₹ 4 crores (main appellant) and ₹ 1 crore each on the other two appellants in terms of Section 114 (i) of the Customs Act, 1962. Appeal allowed in part (only as regards penalties).

Issues Involved:
1. Mis-declaration of export value and availing ineligible DEPB benefits.
2. Adherence to remand directions by the Original Authority.
3. Reliance on statements of witnesses who were not cross-examined.
4. Applicability of decision in Kanak Metal Industries case.
5. Basis of proceedings initiated by Customs Authorities despite Income Tax Department's acceptance.
6. Inclusion of exports through JNPT Port in proceedings.
7. Reliance on overseas import value as evidence.
8. Realization of foreign exchange as a defense for FOB value.
9. Confiscability of the exported goods.
10. Quantum of penalties imposed.

Detailed Analysis:

1. Mis-declaration of export value and availing ineligible DEPB benefits:
The main appellant, a partnership firm engaged in exporting hand tools, was accused of mis-declaring export values in shipping bills to avail ineligible DEPB benefits. The Revenue's case was based on intelligence received from the Income Tax Department, indicating financial irregularities. Investigations revealed inflated export values through manipulated invoices and exaggerated indirect costs. The Original Authority found the goods with an FOB value of ?17.66 crores liable for confiscation and imposed penalties totaling ?12 crores on the appellants.

2. Adherence to remand directions by the Original Authority:
The Tribunal had remanded the case twice for fresh examination, directing the Original Authority to address errors and assumptions in the show cause notice, examine conditions under Section 9D of the Central Excise Act, and consider the ratio of the decision in J&K Cigarettes and Kanak Metal Industries. The Original Authority adhered to these directions, addressing all major points raised by the appellants and analyzing the evidences and legal provisions comprehensively.

3. Reliance on statements of witnesses who were not cross-examined:
The appellants argued that statements from witnesses who were not cross-examined should not be relied upon. The Original Authority noted that despite multiple attempts, witnesses like Shri Subhash Chander and Mohd. Ramzan could not attend due to ill health. The Authority concluded that the statements, supported by documentary evidence, were admissible. The Tribunal agreed with this detailed examination, validating the reliance on these statements.

4. Applicability of decision in Kanak Metal Industries case:
The appellants cited the Kanak Metal Industries case, where the Tribunal held that the Revenue cannot fix FOB value equal to PMV. The Original Authority distinguished this case, noting that the present case involved manipulated and forged documents establishing over-invoicing and inflated FOB values. The Tribunal upheld this distinction.

5. Basis of proceedings initiated by Customs Authorities despite Income Tax Department's acceptance:
The appellants contended that since the Income Tax Department accepted their books of accounts, the Customs Authorities had no case. The Tribunal noted that both authorities operate under different legal jurisdictions. The Customs Authorities collected substantial evidence of over-valuation, justifying their proceedings.

6. Inclusion of exports through JNPT Port in proceedings:
The appellants argued that certain exports through JNPT Port should not be part of the proceedings. The Original Authority accepted this argument and excluded those exports from the present proceedings.

7. Reliance on overseas import value as evidence:
The appellants challenged the reliance on import values from Dubai. The Original Authority considered this as corroborative evidence indicating non-transparent transactions. The Tribunal agreed, finding a clear basis for questioning the FOB value.

8. Realization of foreign exchange as a defense for FOB value:
The appellants argued that realization of foreign exchange should uphold the declared FOB value. The Original Authority, relying on various decisions, held that realization of foreign exchange does not sanctify the FOB value in the presence of evidence of manipulation. The Tribunal upheld this view.

9. Confiscability of the exported goods:
The appellants contested the confiscation of goods. The Original Authority, after examining various decisions, held that the goods were liable for confiscation under Section 113(d) of the Customs Act. The Tribunal found no reason to interfere with this finding.

10. Quantum of penalties imposed:
The Original Authority imposed penalties totaling ?12 crores. The Tribunal found the penalties on the higher side considering the quantum of improper benefit (?2,14,07,535/-) and reduced the penalties to ?4 crores for the main appellant and ?1 crore each for the partners, modifying the quantum but otherwise dismissing the appeals.

Conclusion:
The Tribunal upheld the findings of the Original Authority on the merits of the case, validating the evidences and legal analyses presented. The penalties were reduced, but the appeals were otherwise dismissed, confirming the confiscation and penalties for the mis-declared export values and ineligible DEPB benefits availed by the appellants.

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