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TMI Blog2004 (9) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... garments namely, ladies blouses and ladies skirts to Canada and eight shipping bills for export of ladies blouses to USA. The consignment of the goods was examined on 5-1-1999 in presence of Shri Rehman Khan, representative of the exporter and two independent witnesses. On examination, the garments were found to be of poor quality, highly over-invoiced and not worth for export. Representative samples of each type of these garments were taken out from the consignment of the goods under Panchnama and the goods were seized on the reasonable belief that these are liable for confiscation. On 8-1-1999, Smt. Vijay Lakshmi, Manager of the appellant-firm tendered her statement under Section 108 of the Customs Act wherein she stated that they have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods on the shipping bills and penalty was proposed under Section 114 of the Customs Act. The case was adjudicated by the Commissioner after giving opportunities of hearing to the appellants and he accordingly confiscated the seized goods under Section 113(h)(i) of the Customs Act but the appellants were given option to redeem the same on a fine of Rs. 1,30,000/-. He also refixed the duty drawback on the goods meant for export to Canada as Rs. 84,029/- and imposed a penalty of Rs. 1,00,000/- on the appellants under Section 114 of the Customs Act. 3. Shri A.C. Jain, learned Advocate appearing for the appellants pleaded that the department has not supplied to them all the documents on which the show cause notice is based. The appellants had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable. Therefore he cannot confiscate the goods. He finally pleaded that their appeal may be allowed. 4. Shri P.M. Saleem learned SDR appearing for revenue pleaded that under Section 50 of the Customs Act, the appellants are required to give the correct declaration regarding the market value and FOB value of the goods to be exported under section 76 of the Customs Act if the drawback claim is more than the market value of the goods, then no drawback is admissible. He stated that in the present case, the appellants for the same goods have declared different FOB value for goods exported to Canada declaring the value of blouse at Rs. 101.5 whereas for the same blouse for export to USA they have declared the value ranging from Rs 132.57 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot raise the plea at the appellate stage that all the documents were not provided to them. The department has never denied to give the documents to them nor they were denied any opportunity of hearing which was availed by them but they themselves did not ask for any cross-examination or any further documents. Therefore the plea of the appellant is totally unwarranted that they were not provided the documents. Once allegations have been made against them and the contents of the documents have been referred to in the show cause notice it was for them to get the copies, if they wanted or at least pleaded before the Commissioner during the hearing regarding non-availability of documents which was not done by them. Therefore, at the appeal stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2(41) Value in relation to any goods means the value thereof determined in accordance with the provisions of sub-section (1) of Section 14. Therefore, over-invoicing of the goods for exportation was an offence under Customs Act. In the present case, the appellant have over-invoiced the goods to claim higher drawback and therefore, these goods were liable for confiscation under Section 113 of the Customs Act. Wrong mention of Section 113(h)(ii) was taken up before the Commissioner and he had given finding in his order that it was a typographical error for writing 113(h)(i). He also pleaded that even mentioning wrong section does not vitiate the show cause notice if the charge of over-invoicing is properly brought out in the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ordinary course of trade in India. The market price of the goods on market enquiry was found very low than the declared price. Even the market price as admitted by Shri Sanjay Kumar Proprietor of the appellant-firm was Rs. 50/- to Rs. 60/- per piece whereas the drawback claimed by them was between Rs. 78/- to Rs. 82/- per piece. Therefore according to Section 76 of the Customs Act, no drawback was allowable in respect of any goods, the market price of which is less than the amount of draw-back due therein. Therefore the drawback was correctly denied by the Commissioner. We also find that the appellant had over valued the goods and also gave wrong declaration of the market price under Section 50 of the Customs Act in the declaration at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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