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TMI Blog2014 (12) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... signs and no such correspondence was produced to support their contention. The fact that earlier, based upon the market enquiry, the declared value was accepted is of no consequence. In fact, the appellants should have produced these documents to the customs authorities before finalization of those 14 shipping bills. It is a case of concealment of vital documents from Customs authorities and producing some other documents that the value was accepted, the appellants cannot be allowed to take benefit of their wrong deeds. We, therefore, reject the appellants’ contention. In view of the overwhelming evidence found during the search of the appellants’ premises, we have no doubt that the FOB value declared was not the actual transaction value/FOB value but were highly inflated for claiming DEPB benefits or for bringing in illegally obtained foreign exchange. - Decided against the assessee. - C/86763-86766/2013-Mum - Final Order Nos. A/539-542/2014-WZB/C-I(CSTB) & Stay Order Nos. S/255-258/2014-WZB/C-I(CSTB) - Dated:- 3-4-2014 - Shri S.S. Kang, Vice-President and P.K. Jain, Member (T) Shri S.N. Kantawala, Advocate, for the Appellant. Shri P.M. Saleem, Commissioner (AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omparing to the ARE-1 were presented to the customs. Statements of various persons including Shri Nitin Kumar Didwania, Director of the appellants (1) and (2), officials of appellants (1) and (2), as well as officials of the manufacturing units were recorded. Based upon the investigation, show cause notices were issued to the appellant (1) and (2) proposing re-determination of the value of the goods based upon the ARE-1 value plus .08 pounds per pc of Percelain mugs instead of the declared value in the export documents. 3. After receiving the reply from the appellants and hearing the appellants, the impugned order has been passed, wherein the Commissioner has rejected the export value declared for the impugned goods exported by the appellants (1) and (2) and re-determined the same on the basis of ARE-1 plus .08 pounds per pc. Further, due to misdeclaration in the value, the goods exported became liable to confiscation under Sec. 113(d) 113(i) of the Customs Act but since the goods have already been exported and are not available for confiscation, no order for redemption of the goods was issued. However, penalty equivalent to re-determined value was imposed on the appellants (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge. Based upon these documents and the fact that the department did not have any evidence to the contrary, the value was accepted. However, subsequently, in respect of 3 shipping bills, realizing that the FOB value is 4 to 5 times more than the ARE-1 value, investigations were carried out. Searches were conducted at the appellants premises and case is booked based upon the incriminating documents recovered from the appellants own office. Ld. AR also clarified that the case is not based upon the statements but based upon the documents recovered from the appellants own office. Statements have been recorded only to explain the documents or to support what is written in the documents. The ld. AR has contended that it is fact that the importer in U.K. had already dealt with in past with the manufacturer of Porcelain mugs from whom the appellants were procuring the same and obviously no businessman will pay 4 to 5 times the price to the appellants. Even, the documents recovered indicated that the appellants were to add .08 pounds per pc. of mugs as the value addition on their account which appears to be reasonable. Ld. AR stated that there was no reason to keep two sets of invoices an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court s decision in the case of Om Prakash Bhatia (supra) is applicable as both in that case as also in the present case, the issue involved is valuation of export goods. The fact that in one case the goods were being exported under drawback claim and in the present case under DEPB makes no difference. Ld. AR also stated that during arguments, ld. counsel for appellants has talked about not granting cross-examination to one Shri L. Jajodia of JCPL. Ld. AR stated that even in the appeal memorandum the appellants have not taken up this point and this shows that they were not serious about the cross-examination. What is stated by Commissioner in the impugned order is correct. In any case, all that Shri Jajodia has stated in his statement was about the goods exported by him to the same buyer M/s. Ransat, U.K. Some variation in the quality or pattern of the goods may cause some variation in the export price but not to the extent of 400 to 500% value. It is not in dispute that M/s. JCPL exported Porcelain Mugs to the same buyer in U.K. directly as also through the appellants (1) and (2). Ld. AR contended that in view of the said position, the impugned order should be upheld and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, purchase invoice, correspondence between the buyer in UK and the appellants, packing list and other invoices. The authenticity of the documents had never been questioned by the appellants. In view of this position, the fact that earlier, based upon the market enquiry, the declared value was accepted is of no consequence. In fact, the appellants should have produced these documents to the customs authorities before finalization of those 14 shipping bills. It is a case of concealment of vital documents from Customs authorities and producing some other documents that the value was accepted, the appellants cannot be allowed to take benefit of their wrong deeds. We, therefore, reject the appellants contention. 8. We have also gone through the order passed by the Jt. DGFT. The Jt. DGFT has not accepted the value of Porcelain mugs. On the contrary Jt. DGFT has kept the matter pending in respect of DEPB pass book relating to export of Porcelain mugs and has directed that the value will be reduced based upon the decision of Customs regarding correct value. Another contention of the ld. advocate for the appellants was that the department did not permit cross-examination of Shri Jajodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (in GBP) Actual invoice value as per seized documents (In GBP) HML/RNK/026/02-03 54,952.90 12,009.31 HML/RSP/027/02-03 64,270.08 14,901.26 HML/DPL/004/03-04 HML/DPL/004A/03-04 HML/DPL/044B/03-04 45,299.52 47,557.44 42,336.00 10,543.97 11,161.44 9,936.00 9. In view of the overwhelming evidence found during the search of the appellants premises, we have no doubt that the FOB value declared was not the actual transaction value/FOB value but were highly inflated for claiming DEPB benefits or for bringing in illegally obtained foreign exchange. In view of the above, we find no merit in the contentions of the appellants in the appeals and we reject the appeals filed by appellants (1) and (2). 10. We note that Shri Nitin Kumar Didwania was the main person managing the activities of appellants (1) and (2) and was instrumental in the fraud. By this act, he is liable to penalty under Sec. 114(i). Appeal of appellant (3) is also dismissed. We also note that one of the appellants Shri Rejeev Verma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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