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TMI Blog2015 (2) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... final fact finding authority to base our decision on Order-in-Appeal which does not take into account the facts involved, the extant of law, value of exported goods, administrative guidelines on the issue of applicability of judgement quoted by both sides. - Matter remanded back - Decided in favour of Revenue. - Appeal No. C/406 and C/407/2008 - Final Order No.50214-50215/2015 - Dated:- 29-1-2015 - Mr. D. N. Panda And Mr. Manmohan Singh,JJ. For the Appellant : Ms. Ranjana Jha, JCDR For the Respondent : Shri T. R. Rastogi, Advocate ORDER Per : Manmohan Singh Revenue have come in appeal against the Order-in-Appeal No. CC(A)/Cus/ICD/D-II/55/08 and Order-in-Appeal No. CC(A)/Cus/ICD/D-II/54/08 dt.29.1.2008 passed by Commissioner of Customs, New Delhi. Commissioner (Appeals) set aside Order-in-Original No.68/SNB/2007 and OIO No.68/SNB/2007 dt.30.04.2007 passed by the Adjudicating authority i.e. Assistant Commissioner of Customs (Export Shed), New Delhi and held that the assessee were entitled for DEPB benefit at declared export price. 2. The facts of the case as stated in the Commissioner (Appeals) s order are stated below to appreciate the issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the value of the impugned goods @ ₹ 22.00 per Metre in respect of shipping bill No.1532727 dated 27.09.2006 was correct market price. Similarly in respect of value of impugned goods at the rate of ₹ 22/- in respect of shipping bill No.1543780 was correct market price. 4. Ld.Counsel of the assessee contested before the Commissioner (Appeals) that overvaluation held by the department and that there was no overvaluation of goods exported to M/s.Pardesh Mulla Khail Kamawal Co.Ltd.,Kabul which were in the normal course of international trade on the negotiated price. It was further contented that the entire export value had been realized which was evident from the bank realization certificate issued by Lord Krishna Bank. It was also emphasized that since foreign buyer was an independent firm and the entire export proceeds have been realized and the value declared by the assessee has been proved to be genuine. Reliance was placed of Tribunal in the case of Shilpi Exports vs. CC-1998 (83) ELT 302 confirmed by the Supreme Court as reported 2000 (115) ELT A219 and S.Chander Shekhran vs. CC-2000 (132) ELT 751 confirmed by the Supreme Court as reported in 2003 (154) ELT 353. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is duly reported in the economic daily and what could be possible value addition and what could be likely prevailing price in India and likely price available abroad. Further market enquiry conducted with renowned trade person like Jagdish Sons and Kedarnath and Ratanlal clearly pointed out that the value has been stated over by 600% with the sole purpose of claiming higher DEPB to enrich at the cost of the Revenue. 8. Reference was also made to various judgements of the Tribunal some of these were confirmed by the Supreme Court were having different facts and could not be applied without specifically looking to the factors involved in the present case. No doubt arises on the investigation conducted by the department that overvaluation has been undertaken for availing higher DEPB benefit. Since Revenue has come up in appeal against the order passed by the Commissioner (Appeals), Reference was made to circular No.26/4/2001 wherein it has been stated that in case over-invoicing of export goods, PMV shall be determinative factor for allowing DEPB benefit. Reference was also made to the Circular No.63/2002-Cus dated 27.9.2002, Circular No.77/2002-Cus dated 27.11.2002 and Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds to appreciate the rival contentions. The present appeals have been filed by the Revenue against the Order of the Commissioner (Appeals) who has held that DEPB claim could not be denied merely on the basis of value of goods ascertained from the market enquiry and where full payment has been received from the exporters/respondents. He also referred to several judgements to support his finding. 13. The Revenue in their appeals, referred to the judgements passed by the Supreme Court in the case of Om Prakash Bhatia-2003 (155) ELT 423 (SC) wherein it was held by the hon ble Supreme Court that market price prevailing in the country and not the price which exporters accepted from the overseas buyers was relevant consideration for getting drawback. It was also held that where margin of profit appears to be unreasonable it was for the exporter to establish that true value was declared in the shipping bills. 14. The Revenue has also pointed out that while market price was in the range of ₹ 20-22 per metre, the respondents declared FOB value at ₹ 132 per metre. It has also been highlighted in the appeals that findings of the Commissioner (Appeals) to the effect that vari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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