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TMI Blog2012 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be acceptable - M/s. Rochees Watches has already given a bank guarantee of Rs. 1.10 crore – waiver of pre-deposit allowed - C/544-547 and 556-561/2011 - C/378-387/2011(PB) - Dated:- 20-10-2011 - Ms. Archana Wadhwa, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri Vikram Nankani and Rohan Batra, Advocates, for the Appellant. Shri R.K. Gupta, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J) (Oral)]. All the stay petitions are being disposed of by a common order as the issue arise of out of same order passed by the Commissioner vide which he has imposed penalties on various appellants, as indicated below :- Quantum of Penalty S. No. Party Penalty (in Rs.) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on fines and imposing penalties, as detailed in the preceding paragraphs. 4. Learned Advocate appearing for the applicant submits that the Commissioner for arriving at the finding that FOB value export is less than the value declared by the exporters, has relied upon the market enquiry of the local traders. He submitted that apart from the fact that such market enquiries of the local traders are in respect of goods sold and purchased in India, the said local traders do not stand produced by the adjudicating authority for cross examination. As such, their statements cannot be relied upon. Apart from above, he submits that two dealers filed affidavits retracting their statement. As such, nothing turns out from their statements. Second evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority on said factors for concluding that the live export consignment were not gold plated cannot be appreciated. He further submits that if the value of gold is taken into account the costing arrived at by the appellant is correct. He further submits that the adjudicating authority has taken into consideration the fact that the substantial export were made to the related person and as such, the value declared by the appellant cannot be accepted to be correct value. Clarifying on the above issue, he submits that it is a fact that the one of the directors of the buyers company is either brother or nephew of the director of the exporting company. However, he submits that this fact itself will not introduce the related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to goods ultimately sold in Spain at a value lower than the declared by them. He submits that inasmuch as the said report relates to buyer s buyer, the same cannot be held to be a factor adverse to their claim of valuation. In any case, learned Advocate submits that the watches is an item in respect of which FOB cap stands notified alongwith DEPB rate. The value claim made by the exporter fall within the said FOB cap. By referring to Board s Circular No. 27/2000-Cus., dated 5-4-2000, he submits that in cases where FOB value cap has been notified, the present market value is not required to be verified by the Customs House. As such, he submits that the impugned order of the Commissioner re-fixing the FOB value declared by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Board that for all products exported under DEPB Scheme, wherever FOB value cap has been notified alongwith DEPB rate, PMV will not be verified by the Customs House. Circulars mentioned in the first para above shall also stand amended to this effect. 7. Admittedly it is not the case of the Revenue that the export value declared by the appellants exceed FOB value cap notified by the authorities. The Tribunal s decision in the case of M/s. Kanak Metal Industries v. CC, Jodhpur vide its Final Order No. C/368-369/11, dated 12-3-11 [2012 (275) E.L.T. 115 (Tri. - Del.)] has observed that in terms of CBEC s Circular No. 27/2000-Cus., dated 5-4-2000 make it clear that DEPB credit allowed for the goods subject to value cap, PMV is irrel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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