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TMI Blog2011 (2) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... e shipping bills and allowed to be redeemed on payment of fine in lieu of confiscation of Rs.8 lakhs. Further penalty of Rs.50 lakhs has been imposed on SCPL. The penalty of Rs.30 lakhs has been imposed on M/s. Sarthi Textiles (referred to as ST) who was the supplier of the garments to SCPL. A penalty of Rs.25 lakhs has been imposed on Shri S.T. Arora, the Managing Director of SCPL and authorised signatory of ST. A penalty of Rs.15 lakhs has been imposed on Shri Shyamsunder Satyal, authorised signatory of SCPL. All the four are in appeal before us. No one has appeared on behalf of the appellants. However Shri Willingdon Christian, learned advocate has filed written submissions on behalf of the appellants. 3. Before we proceed to consider the written submissions, facts have to be stated in brief. The goods were seized by the customs officers on the ground that the same were of very poor quality, cartons used were also of very inferior quality and did not bear any packing details and numbers were written by some semi illiterate person and value when compared with quality appeared to be disproportionately higher. Thereafter samples were drawn and sent to chemical examiner. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions, the learned advocate submitted the following points: Export was undertaken absolutely without any export benefits like DEPB etc; the entire value of export goods has been realized in foreign exchange and bank realization certificate has also been produced; there is no evidence of contemporaneous lower price of the subject goods in the international market and there is no allegation of money laundering and therefore allegation of overvaluation cannot be sustained. He relied on several decisions of the Tribunal and Supreme Court; the conclusion of the adjudicating authority that appellants intended to claim DEPB is wrong as evidenced by the statement of Shri S.T. Arora who categorically stated that neither DEPB nor export benefit was proposed to be claimed; the shipping bills were not blue coloured meant for DEPB scheme and conversion cannot be allowed as per the circular of the Board; SEZ unit does not need DEPB because of their imports are otherwise duty free; since the goods exported have value caps, overvaluation does not result in inflated DEPB claim. The Commissioner s reliance on para 17.2 of exim policy is misplaced because DEPB mentioned therein is in lie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the export goods. He also submitted that Shri S.T. Arora had not questioned the market value ascertained by the Revenue in his statement and this statement has not been retracted till date. Since the prices given by the traders were accepted by the Managing Director, there was no need for cross examination of the traders as rightly held by the Commissioner. 7. We have considered the submissions made by the learned advocate for the appellants and the learned DR for Revenue. 8. Appellants had declared the value of the goods in the shipping bill as Rs.88,47,337/- whereas ascertained value as per market enquiry is Rs.12,06,600/-. This has been challenged on the ground that the three traders from whom the market value was ascertained did not have any experience/expertise and were not offered for cross examination. The appellants are relying upon the sentence used by the Commissioner in the order a market survey was carried out with leading entities/shops having reasonable experience of dealing with fabrics. The learned advocate has contended that the opinion was given by shops who were dealing with fabrics and not readymade garments. However on going through the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence are not applicable. 10. It was submitted that the department has come to the wrong conclusion that appellants intended to claim DEPB. It has been submitted that the shipping bills filed were not in blue colour and therefore such a claim was not intended. However we find that according to para 17.1 and para 17.2 of Appendix-14-II as indicated in chapter 7 of handbook of procedures, the position relating to DEPB is as under: Para 17.1: DTA supplier to SEZ shall be entitled for:- (a) Drawback or DEPB in lieu of drawback (b) Discharge of export performance, if any. Para 17.2: Notwithstanding the above, SEZ units/SEZ developer shall, on production of a suitable disclaimer from the DTA supplier, be eligible for obtaining the entitlements specified above. 11. It may be seen from the above that ST could have easily claimed drawback or DEPB. DEPB rate is not related to duty paid or payable but is as per the schedule published by the Commerce Ministry. This is further supported by the fact that in the ARE-4, there is no disclaimer by the DTA supplier as regards claiming DEPB or drawback. Further ST could have supplied the goods without pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d does not take away or does not help the appellants to rebut the contention of the department that value was inflated by ST while supplying the garments to SCPL resulting in inflation of value by SCPL. 12. It was also contended that goods have already been finally assessed by Central Excise and therefore Commissioner could not have determined the value afresh. Nowhere evidence has been produced to show that assessment exercise was carried out by Central Excise Authorities and no documents have been produced. Therefore this claim cannot be accepted. 13. It was also submitted that the processors had given identical statements and were not produced for cross examination. All the processors have agreed that value was declared as per the advice given by ST and in our opinion this is sufficient. Since the M.D. of SCPL agreed and accepted the price after ten months of the drawl of sample, there was no need for cross examination. 14. In view of the above discussion, we find that value was wrongly declared is correct and accordingly goods were liable to confiscation. However when we look at the fact that the real value of the goods was Rs.12 lakhs, the redemption fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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