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TMI Blog2013 (8) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... /A/153/12-CUS - Dated:- 31-5-2012 - D.N. Panda And Mathew John, JJ. Appellant Rep by: Shri Sudhir Malhotra, Adv. Respondent Rep by: Shri Amresh Jain, AR Per: D.N. Panda: The Appellant having faced following consequences in terms of adjudication order dated 02.4.2008 came in Appeal before Tribunal being aggrieved by the same: (i) The export value of the goods pertaining to Shipping Bills no. 1012558, 1012559, 1012560, all dated 8.09.05 was re-determined to Rs.20,21,760/- instead of Rs.53,80,690/-. (ii) Goods exported vide Shipping Bills no. 1012558, 1012559, 1012560, all dated 8.09.05 under Section 113 of the Customs Act, 1962 were confiscated. Since the goods were not available for confiscation having been released provisionally the redemption fine of Rs. 5,00,000/- (five lacs only) in lieu of confiscation is imposed under Section 125(1) of the customs Act, 1962. Bank Guarantee of Rs.1,45,286/- was appropriated which was left after adjusting of excess benefit of Drawback and DEPB (shown at Sr. No. iii iv of the order) from Bank Guarantee of Rs. 3.88 lac given by the notice for provisional release. (iii) Recovery of excess benefit of drawba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 145 to Rs. 150 each Rs. 140 to Rs. 145 each Rs. 225 5. Result of market enquiry revealed that as against aggregate value of goods covered by the aforesaid 3 shipping bills declared by the appellant was at Rs. 53,80,690/-, market value thereof was considered by investigation to be only Rs. 20,21,760/-. 6. Statements were recorded from Sri Brij Mohan Bajaj, partner of the appellant u/s 108 of the Customs Act, 1962 on 26.10.2005, 27.10.2005, 17.04.2006 and 09.05.2006 to find out whether claim of DEPB and Draw back was proper in view of alleged variation in the value of the goods. He confirmed the samples drawn from the containers at Nava Sheva, Mumbai and revealed that Trousers were manufactured by them purchasing knitted fabric from M/s Sharmanji Fabrics Pvt. Ltd., Ludhiana and such purchase were supported by invoices and accounted for. Also he stated that T. Shirts exported by them were procured from Adish Fabrics Pvt. Ltd against invoice. He further stated that realizations from the export were received. On confrontation of the opinion of M/s Gulshan Garment House and M/s Arun Garments on the market enquiry, he revealed that they had purchased the T, Shirts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FOB value of these consignments as Rs. 22,66,411-68, Rs. 12,24,138.24 and Rs. 18,90,139-68 respectively, the corresponding assessable value of these consignments based on market enquiries conducted by the officers of Custom (Prev.) Commissionerate, Amritsar (taking into consideration the max. price reflected by the market enquiry of each item referred in para-5 above) works out to be Rs. 7,48,800/-, Rs. 3,22,560/- and Rs. 9,50,400/- respectively and there is overvaluation to the tune of Rs. 33,58,930/-. (2) In the absence of any available record, M/s Pee Ar Exim failed to prove that the trousers covered by S/B No. 1012558 dated 8.9.2005 were manufactured by them from the knitted fabric purchased from M/s.Sharmanji Fabrics Pvt. Ltd. (3) In the absence of any record accounting for receipts and disposal of goods claimed by the noticee as having been received from M/s. Adish Fabrics Pvt. Ltd., Ludhiana, they also failed to prove that the goods covered by Shipping Bill Numbers 1012559 and 1012560 both dated 08.09.2005 were the same goods received from M/s. Adish Fabrics Pvt. Ltd., Ludhiana. (4) M/s. Pee Aar Exim, Ludhiana failed to prove that the documents, based on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33 of OIO). Also he doubted as to whether manufacturing was done out of knitted fabrics claimed to have been purchased not being evidenced. His further question as to whether T-shirts purchased from M/s Adisha Fabrics Pvt Ltd were exported ought to have been investigated. Market enquiry revealed against the appellant. Bank realization evidence showed that entire proceed of export was received without such evidence showing receipt of 20% as advance and balance upon receipt of shipping bills/B.L (Para 39 of OIO). Learned Adjudicating Authority relied on Circular No. 56/2002 dated 09.02.2002 to hold that when there is fraud or suppression, investigation can be conducted. Accordingly market enquiry revealed over valuation of export for which DEPB/Drawback was deniable. 14. Learned Adjudicating Authority did not address the point of defence raised by appellant stated in its reply to show cause notice as recorded in para 19 of OIO to the effect that the appellant was manufacturer and merchant exporter and not holding central excise registration as they were working under Notification No. 30/2004-CE dated 09.07.2004 and not availing cenvat credit facility and the goods covered against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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