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TMI Blog2014 (5) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration. Since the exporter realized the value declared as FOB value it has to be taken as correct This circular is silent on the manner in which PMV is to be ‘considered for the purpose of allowing credit’. Since the circular is a continuation of earlier circular it is reasonable to conclude that the consideration is to ensure that credit given does not exceed 50% of PMV as ascertained. At any rate this change is after the export of goods on 17-08-2000 and cannot be made applicable to this this case - In the process of re-determining the eligible DEPB credit the appellant seems to have suffered beyond what was prescribed under law - in the matter of issue of SCN, the procedure prescribed vide circular 79/98-Cus dated 22-10-98 as amended by Circular dated23/99-Cus dated 11-05-99 was not followed - confiscation of goods and redemption fine and penalty imposed is set aside - Decided partly in Favour of assessee. - Appeal No.C/192/2004 - FINAL ORDER No.40613/2013 - Dated:- 30-9-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri R.Alwan, Advocate Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,68,6187 17,61,124 17,43,750 3,48,750 4. Since it appeared that the exporter had mis-declared Present Market Value (PMV) and FOB value and claimed abnormally high DEPB credit of Rs.17,61,124/- as against the admissible amount of Rs.3,48,750/-, as ascertained by Revenue, a show cause notice was issued proposing re-assessment of the value of the goods to be fixed at Rs.17,43,750/-, confiscation of the goods under section 113 (d) (l) of the Customs Act, 1962 read with section 3 (3) of the Foreign Trade (Development Regulation) Act, 1992 and also for restricting DEPB amount to Rs.3,48,750/- as per the determined value and also for imposing a penalty under section 114 of the Customs Act, 1962. The adjudication resulted in following consequences :- i. value of the goods covered by the three shipping bills for DEPB credit was fixed at Rs.24,07,500/- ii. the goods exported under the above shipping bills were held to be liable to confiscation u/s 113 (d) (l) of the Customs Act, 1962. An option to pay a fine of Rs.2 lakhs in lieu of confiscation was given. iii. A penalty of Rs.1 lakh was imposed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,81,500/- as calculated in the adjudication order. During the hearing, the Counsel for appellant was arguing mainly on the ground that confiscation and consequent penalties may be set aside. He relies on circular No.79/98-Cus. dt. 12.10.1988 issued by the Ministry of Finance in the matter of enquires relating to PMV. The said circular is reproduced below:- Circular No. 79/98-Cus., dated 22-10-1998 [From F. No. 605/51/97-DBK] Government of India Ministry of Finance (Department of Revenue) New Delhi Subject : Revised guidelines for determination / verification of the Present Market Value (PMV) under DEPB Scheme-Reg. Attention is invited to Circular No. 69/97-Cus. dated 8th December, 1997 . As per para 6 and 7 of this Circular, an enquiry / investigation into the PMV of an export product must be completed and a final view taken within 30 days. 2. However, the field formations have reported that verification of PMV involving collection of information /data through market inquiry is time consuming. In several cases the information has to be obtained through the concerned exporters who do not readily co-operate. In view of these difficulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Value declared by the exporter is not accepted a show cause notice shall be issued to the exporter as to why the PMV declared by him should not be rejected/revised. 4. In regard to consignments exported earlier, even prior to the issue of this clarification, if the Commissioner is satisfied that the above-mentioned circumstances exist, which necessitate an enquiry into PMV of the goods in any particular case, the Commissioner may cause enquiries and proceed to have the credit modified by DGFT or to deny the benefit of duly free import against such DEPB scrip till it is amended. 5. The receipt of this circular may please be acknowledged. 9. The circular was further amended by Circular 37/99-Cus dated 24-06-99 which also is to the effect that DEPB benefit shall be restricted to 50% of PMV. 10. Subsequent to export of the impugned goods in Aug 2000, there were amendments made by Circulars 4/02-Cus dated 16-01-2002 and 56/2002-Cus dated 09-09-2002. 11. Opposing the prayer, Ld. AR for Revenue submits that there has been mis-declaration of material particulars in the shipping bills inasmuch as the PMV was declared wrongly. Since every exporter is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns on which import is permissible and whether the conditions are satisfied because the appellant attempted to smuggle out the goods by concealing the same in emergency light, mixie, grinder and car horns etc. and hence the goods so brought is prohibitory goods as there is clear violation of the statutory provisions for the normal import of gold. Further, as per the statement given by the appellant under Section 108 of the Act, he is only a carrier i.e. professional smuggler smuggling goods on behalf of others for consideration. We, therefore, do not find any merit in the appellant's case that he has the right to get the confiscated gold released on payment of redemption fine and duty under Section 125 of the Act. 12. We have considered submissions on both sides. Since the exporter realized the value declared as FOB value it has to be taken as correct. The adjudicated authority himself has given benefit to the appellant on this issue as seen from para 9 of the impugned order. 13. The formula adopted in the impugned order for determining DEPB benefit is prima facie wrong. The circular dated 69/97-Cus dated 08-12-1997 prescribed that if DEPB benefit calculated by applying th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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