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TMI Blog2008 (6) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... uty drawback involved 1. M/s. Brooks 11 Rs. 1,74,62,286/- Rs. 31,43,210/- 2. M/s. Manitoba 11 Rs. 1,74,62,286/- Rs. 31,43,210/- 3. M/s. Overseas 12 Rs. 1,64,69,015/- Rs. 29,53,624/- 1.1 The DRI officers, on the basis of some prior information examined the above-mentioned export consignments in presence of pancha witnesses and in all the consignments, the goods were found to be old and used ready-made garments of Hong Kong, Korea, U.S.A., U.K., Sri Lanka and Indonesia origin. The prevailing market value (PMV) of the goods being exported by M/s. Brooks, M/s. Manitoba and M/s. Overseas were ascertained with the help of two persons as Rs. 13,64,675/-, Rs. 13,54,750/- and Rs. 13,81,750/- respectively. Since the goods were found to be old and used and hence not eligible for drawback in terms of Rule 3 of the Customs and Central Excise Drawback Rules, 1995, since drawback also appeared to be inadmissible under Section 76(1)(b) of the Act for the reason that the PMV of the goods appeared to be less than the Drawback claimed and since FOB value and description of the goods appeared to have been misdecl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d such exports/imports would be in contravention of the provision of Section 11 of the Customs Act, 1962 and thereby attracting the provisions of Section 111(d)/l 13 (d) of the Act. 2. Heard both the sides. 2.1 Shri K.K. Anand, Advocate, the learned counsel for the Appellants made the following submissions :- (i) one limb of the Tribunal s order regarding misdeclaration of market value of the goods has not been challenged by the Revenue before the Hon ble Supreme Court. Therefore the Tribunal s findings on this point in the order No. A/242-244/02-NB-D dated 6-2-02 [2002 (141) E.L.T. 547 (Tribunal)] become final. (ii) The opinions of two persons regarding market value of the goods, relied upon by the Revenue are identically worded and obviously typed on the same typewriter, which casts doubts on their authenticity. (iii) Other than the opinion of two persons - Shri Manoj and Shri Girish, there is no other evidence of the goods being over invoiced. (iv) Since there is no misdeclaration of market value, there is no question of confiscation of the goods. 2.2 The learned departmental representative - Shri A.P.S. Suri, Jt. CDR and Shri R.K. Verma, Senior DR poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempted to be improperly exported etc. - The following export goods shall be liable to confiscation :- (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force. 7. The aforesaid Section empowers the authority to confiscate any goods attempted to be exported contrary to any prohibition imposed by or under the Act or any other law for the time being in force. Hence, for application of the said provision, it is required to be established that attempt to export the goods was contrary to any prohibition imposed under any law for the time being in force. 8. Further, Section 2(33) of the Act defines prohibited goods as under :- prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. 9. From the aforesaid definition, it can be stated that (a) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues. x x x x x x x 15. It is true that Section 50 of the Act inter alia provides that before exporting the goods the exporter shall make entry thereof by presenting to the proper officer in the case of goods to be exported, a shipping bill and a bill of export in prescribed form. The shipping Bill and Bill of Export (Form) Regulations, 1991 inter alia prescribes the said form. After that form is amended w.e.f. 15-6-2001, it is stated exporter shall state Value - FOB/PMV where applicable . We are not required to deal with this aspect in this appeal as the goods were sought to be exported in the year 1998. 16. From the aforesaid provisions, mainly, Section 2(41) read with Section 14 of the Act and Section 18 of the Foreign Exchange Regulation Act, 1973, it is crystal clear that :- (a) Exporter has to declare full export value of the goods (sale consideration for the goods exported) (b) Exporter has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney transaction. In any case, over-invoicing of the export goods would result in illegal/irregular transactions in foreign currency. 19. Learned Senior Counsel Mr. Dave submitted that in some cases, exporter may get much higher value of the goods than the market price prevailing in the country and therefore, merely because higher export value is mentioned, it cannot be inferred that it is not the true sale consideration. In some cases, this hypothetical contention may be right. However this would depend upon facts and circumstances as well as evidence on record in each case. If the goods are easily available in the market, then it would be difficult to arrive at the conclusion that a foreign buyer - a prudent businessman would pay ten times more than the prevailing market price of ready-made clothes, particularly, in the days where information is easily available through internet or various other sources. In any case, when margin of profit appears, on the face of it, unreasonable, it is for the exporter to establish that it was true export value stated in the shipping bill. Section 14 itself contemplates that the price at which such or like goods are ordinarily sold or offered fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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