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TMI Blog2004 (2) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 34,61,538/- Rs. 1250/- The appellants claimed DEPB credit @ 16%. The goods were allowed provisional clearance for export subject to result of chemical test on the samples drawn from the consignments. The export goods had been purchased from parties at Ludhiana (Punjab). The test report of the Custom House Laboratory, Cochin showed that the goods exported under S/B No. 2106 contained 55% synthetic fibre and 45% animal hair (wool) (as against the party s declaration of composition: synthetic fibre 69.4 - 70.5%). In respect of the goods in S/B No. 1000, the chemical composition as per the test report was : acrylic fibre 89.5% and cellulosic fibre 10.5% (as against the party s declaration of composition: wool 12%; acrylic fibre 9.7%; polyester fibre 57.7% and other fibres 20.6%). In respect of the goods in S/B No. 2088, however, the test result somewhat tallied with the party s declaration inasmuch as the synthetic fibre content was found to be above 65%. It appeared to the department that the appellants had misdeclared the composition of goods in S/B Nos. 1000 and 2106. Market enquiries were also conducted by the department to ascertain the PMV (Present Market V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls for grant of eligible DEPB credit. The assessment is to be finalised immediately and eligible credit allowed to the exporter as per the prescribed procedures. (2) The exporter is entitled to DEPB credit under Group 89, Sl. No. 62 in respect of goods declared as children s legging vide S/Bill No. 1000, dated 8-12-1998. (3) The exporter is entitled to DEPB credit under Group 89 Sl. No. 68(b) @ 13% where the synthetic content is only 55% in respect of Shipping Bill No. 2106, dated 21-1-1999. (4) The goods covered vide S/Bill No. 2088/21-1-1999 and S/B No. 2106/21-1-99, wherein the exporter has deliberately declared a wrong composition to claim higher ineligible DEPB credit is liable for confiscation under Sec. 113 of the Customs Act for misdeclaration of the goods. As the goods are no longer available for confiscation, it is felt that justice would be made if the exporter is penalised by way of penalty. (5) I impose a penalty of Rs. 25,000/- (Rupees twenty-five thousand only) on M/s. Cannon Steels Pvt. Ltd., Ludhiana under Section 114 of the Customs Act. 2. Heard both sides. Ld. Counsel for the appellants submitted that there was no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC, Delhi [2003 (155) E.L.T. 423 (S.C.)] and submitted that, when margin of profit was apparently unreasonable, it was for the exporter to establish that the export value declared in the Shipping Bill was correct. The appellants did not discharge this burden of proof. Hence the allegation of misdeclaration of value stood unrebutted. The chemical test report of the Custom House Laboratory was legally authentic and the same was binding on the party, who did not ask for any retest in the Central Revenues Control Laboratory of the department. On the other hand, they wanted to have the samples retested in an outside laboratory, for which they did not state any valid reason. The DR also vehemently argued that the penalty imposed by the Commissioner on the basis of the finding of misdeclaration was not assailable in the facts of this case. In this connection, he, again, relied on the Supreme Court s decision in Om Prakash Bhatia (supra). 4. We have examined the records and the submissions. The Commissioner appears to have attributed motive to the Ludhiana-based appellants on account of their having chosen Cochin Port for export of the goods. This can hardly be justified as the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, the Commissioner fixed lower FOB values and PMVs than those declared by the appellants in respect of all the consignments. The declared FOB values and PMVs as well as the FOB values and PMVs determined by the Commissioner are as under :- Bill No. and date Unit FOB value declared Unit PMV declared FOB value determined PMV determined 1000 8-12-98 Rs. 677/- Rs. 375/- Rs. 236/- Rs. 225/- 2088 21-1-99 Rs. 1252/- Rs. 1200/- Rs. 709/- Rs. 675/- 2106 21-1-99 Rs. 1252/- Rs. 1250/- Rs. 788/- Rs. 750/- DEPB credits have been allowed respectively at the rates of 15%, 16% and 13% of the FOB values determined on the above basis in respect of the goods under the above Shipping Bills. 6. The main controversy in this case relates to the determination of FOB values and PMVs of the goods for the purpose of DEPB credit benefit. The PMVs were determined on the basis of market enquiries held at Ludhiana. It has been argued that rejection of the PMVs declared on the basis of the purchase invoices pertaining to the goods is contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of M/s. Chawla Knitwears says that they had not dealt in such goods during 1998-99. As regards M/s. Bajwa Nagar Hosiery Association, they issued clarifications to the Customs authorities subsequent to the market enquiries. One of these clarifications dated 5-1-2002 is that acrylic fibre is a substitute for wool in Hosiery industry. Another clarification says that, as per trade parlance, it is not essential that hosiery goods known as woollen blended hosiery should contain wool at all. These subsequent certificates/clarifications did vitiate the reliability of the earlier market enquiry results. In the circumstances, the market enquiry results are not reliable evidence in this case. One has to revert to the evidence adduced by the exporter, that is, the purchase invoices of the manufacturers, from whom the export goods were purchased by the appellants. We, therefore, are inclined to follow the view taken in Final Order No. 282/2002/A, dated 4-6-2002 in Appeal No. C/142/2001/A [2002 (145) E.L.T. 490 (T)]. 8. Ld. DR has relied on the Supreme Court s decision in Om Prakash Bhatia (supra). We have perused this judgment of the Apex Court and we find that the case involved overinvoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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