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TMI Blog2006 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the one hand and the exporter and the foreign buyer on the other hand. (b)The Board s Circular relied by the ld. Advocate stipulates that if the FOB value is within 150% of the manfacturer s price, the same cannot be rejected. The said Circular is binding on the department and has to be and been consistently followed in the decisions relied upon by the ld. Advocate appearing for the respondents. We do not see any reasons to take a different view. (c) The exporter and buyer are not related parties. The price is not stated to be not the sole consideration. Rather it is on record that full consideration for the exported goods has been realised. At the most the inquiries with M/s. Accidental Software may only mean that the cost to the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BALASUNDARAM, VICE PRESIDENT AND S.S. SEKHON, MEMBER (T) Shri K.M. Mondal, Consultant, for the Appellant. Shri Madhur Baya, Advocate, for the Respondent. Order S.S. Sekhon, Member (T) 1. These two appeals are being disposed by this common order, as the issues involved in both the appeals are the same. Revenue is in appeal. 2.1 The common facts in the two appeals are as under : (a) The respondents are merchant exporters. They purchased CD Roms containing computer programs from the manufacturer thereof, M/s. Padmini Polymers Ltd. The purchase price was Rs. 640/- per piece. The two exporters had entered into contracts with foreign buyers for export of these CD Roms at the rate of USD 18 per piece, which is equivalent to Rs. 761.40/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view thereof, the declared value ought to be accepted. He further relies on the following decisions, where after noticing the said Circular, the declared value was accepted : (i) Peerless Consultancy Services Pvt. Ltd. v. Commissioner [2002 (143) E.L.T. 176] (ii) C.C. v. Balaji Industrial and Agricultural Castings P. Ltd. [2005 (188) E.L.T. 318] (iii) Cannon Steel Pvt Ltd. v. C.C. [2002 (145) E.L.T. 490] Mr. Baya submitted that the exporter is not concerned how and at what price the manufacturer had obtained the masters. He submitted that the exporters are not concerned with the cost of manufacture, but only with the purchase price, which is undisputed. He further submitted that there is no allegation that the exporters are relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign buyers is not genuine. The exporters have procured the goods for valuable consideration and in turn, received the foreign exchange fully for the sale of goods to the foreign buyer. Therefore, there is no reason to discard the Transaction Value as between the manufacturer and the exporter on the one hand and the exporter and the foreign buyer on the other hand. (b) The said Board's Circular relied by the ld. Advocate stipulates that if the FOB value is within 150% of the manfacturer's price, the same cannot be rejected. The said Circular is binding on the department and has to be and been consistently followed in the decisions relied upon by the ld. Advocate appearing for the respondents. We do not see any reasons to take a different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the Apex Court in Om Prakash Bhatia is not applicable in the facts and circumstances of the case. That was a case of Export under Drawback Scheme. There facts were conceded by the exporter and thereafter, the only question for determination was whether the goods were liable for confiscation under Section 113 of the Act. In the instant case, the proper officer allowed export after examination of the goods, there is no admission regarding the quality of the goods, being inferior. (e) Under DEPB Scheme, as in this case, the goods for export are neither dutiable nor prohibited. Therefore, in such cases, the provisions of Section 113 of the Customs Act, 1962 are not applicable as held by the Hon'ble Supreme Court in Prayag Expor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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