2019 (4) TMI 1709 - AT - Customs

Benefit of Duty Entitlement Pass Book (DEPB) scheme in the Foreign Trade Policy - overvaluation - Confiscation - penalty - HELD THAT - The applicability of resort to appraisal of value can arise only within the context of deviation from section 14(1) of Customs Act, 1962 and rules for valuation of exports was not in existence during the relevant period. There is no evidence on record to show that the appellant had not been in receipt of the amount transacted for the goods which could, then, have had a bearing on redetermining of transaction value. Reliance placed on ascertainment from local market does not in any way concord with the requirements of section 14 of Customs Act, 1962 which benchmarks time and place of exportation as critical to acceptance of a value. The scrip does not conform any privilege; it prescribes a ceiling of eligibility for duty free import that is within the exclusive jurisdiction of the licensing authority. It is the utilisation of the scrip that triggers exemption from duty and, to the extent of ineligibility, arising from overvaluation of exports, can be proceeded against for recovery of the duty unpaid in consequence under section 28 of Customs Act, 1962 - In the absence of such proceedings, a bland order of recovery is without legal authority as it does not have sanctity of law. Confiscation of goods under section 113(1) of Customs Act, 1962 follows from misdeclaration of value. While the market value of the impugned goods appear to have been ascertained, it cannot, by any stretch of law, be adopted for the purpose of assessment under section 14 of Customs Act, 1962 - Valuation upheld. The penalty that was imposed on M/s Narendra Industries would also fail in the absence of finding of confiscability. Appeal allowed.

Summary

Issues:
1. Confiscation of goods for overvaluation
2. Denial of benefits under Duty Entitlement Pass Book (DEPB) scheme
3. Imposition of penalty on M/s Narendra Industries

Analysis:
1. The case involved the export of 'mix graphite guides and seal rings' under the DEPB scheme, with the goods being provisionally allowed for export after an investigation due to the high value declared. The original authority confiscated the goods, imposed a fine, and re-determined the value, leading to a penalty under section 114 of the Customs Act, 1962. The legality and propriety of confiscation, denial of scheme benefits, and penalty imposition were contested.

2. The argument was made that M/s Narendra Industries, involved in job work, was penalized without proper authority under the Customs Act, as they were not directly related to the export process. The penalty was imposed based on misleading statements during the investigation, but it was argued that M/s Narendra Industries was not involved in the export process or commercial transactions. The submission highlighted the lack of authority for penalizing M/s Narendra Industries under section 114 of the Customs Act, 1962.

3. The valuation of the goods, particularly the 'electrical grade carbon graphite moulding compound,' was a key point of contention. The appellant argued that previous exports were cleared without benefit claims at the same rate, questioning the imposition of redemption fine. Reference was made to legal precedents to contest the customs authorities' jurisdiction over the Directorate General of Foreign Trade's decisions. The reliance on local market prices for valuation was challenged, emphasizing the need to adhere to Customs Act provisions for valuation.

4. The judgment discussed the jurisdiction of customs authorities to proceed with valuation even if no duty is leviable, citing legal precedents to support valuation actions. However, it was noted that the valuation should align with Customs Act provisions, especially in the absence of specific rules during the relevant period. The order restricting benefits under the Foreign Trade Policy and the subsequent recovery of excess eligibility were questioned for lacking legal authority and proper procedural adherence.

5. Ultimately, the Tribunal found issues with the confiscation, valuation, and penalty imposition. The confiscation based on misdeclaration of value was deemed unjustified, and the penalty on M/s Narendra Industries was considered inappropriate without a finding of confiscability. The appeals were allowed, setting aside the reduction of value and penalty imposed on M/s Narendra Industries.

This detailed analysis captures the key legal arguments, precedents cited, and the Tribunal's findings on each issue raised in the judgment.