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TMI Blog2006 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords and heard both sides at length. 3.Facts leading to the dispute may be noted first. M/s. Siddhachalam Exports Pvt. Ltd. filed seven Shipping Bills dated 24-2-2003 for export of 'ladies tops' and 'denim shirts'. The declared value of the goods covered by the above shipping bills was about Rs. 4.15 crores. The exports were under claim for drawback amounting to over Rs. 50 lakhs. 4.Based on the intelligence that the aforesaid goods had been hugely overvalued with the intention to claim undue draw-back amounts, Customs authorities carried out 100% examination of the consignments on 26-3-2003, drew samples and showed those samples to M/s. Skipper International for opinion. They valued the denim shirts about Rs. 45/- a piece and ladies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods liable to confiscation under Section 113(b)/113(i) of the Customs Act and the exporter liable to penalty under Section 114 of the Customs Act. 7.In the adjudication proceedings, the respondent contested the competence of Skipper International to furnish opinion as it was dealing only in export surplus and because the opinion was given by the authorized signatory. It was also contended that the appellant had received payment for the goods. The Commissioner accepted the objections raised, faulted the revenue for not carrying out verification of the particulars regarding payment to suppliers mentioned by Shri Jain. He also took note of the claim relating to payment for the export consignments. Based on these, charges raised in the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice has been realized, the declared value remains entirely unsubstantiated. The opinion of M/s Skipper International, who saw the samples, is based on the observation that "these samples of Ladies Tops and Denim Shirts are export surplus and export rejected garments having poor quality of fabric and stitching". There is no contest raised against the finding regarding poor quality of fabric and stitching. It is upon this finding that M/s. Skipper International reached the conclusion that the garments were 'export rejects'. The valuation was also on that basis. Instead of contesting the factual position noted about the samples, the exporter has chosen to attack the competence of the opinion giver. This is not acceptable for two reasons. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted to an effort to cover up inconvenient facts. It is well settled that a person in the possession of clinching evidence on an issue in dispute cannot hope to succeed by withholding that evidence. Therefore, the Commissioner was clearly in error in faulting the revenue for relying upon the opinion of M/s Skipper International and not carrying out investigations on the lines indicated by Shri Jain. The particulars supplied by Shri Jain were not reliable at all and was intended only to mislead. Further, issuance of some cheques is no satisfactory evidence about the correct value of the consignments. 11.It is well settled Om Prakash Bhatia v. Commissioner - 2003 (155) E.L.T. 423 (S.C.) and Commissioner of Central Excise & Customs, A.P. v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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