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TMI Blog2007 (4) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 2. The brief facts of the case are that two units i.e. Citizen Impex and Neptune Impex after purchasing fabrics from one M/s. Shreeji Enterprises filed shipping bills for export under DEPB Scheme where the PMV was declared as Rs. 45/- per yard in both cases but the FOB was declared as Rs. 73.41 per yard in the case of Citizen Impex and Rs. 73.59 per yard in the case of Neptune Impex. In the case of Citizen Impex, the total FOB value declared was Rs. 73,41,160/- and the DEPB claimed amounted to Rs. 7,34,116/- while in the case of Neptune Impex, the total FOB value was Rs. 1,44,52,630/- and the DEPB claimed amounted to Rs. 14,45,263/-. In both the case the shipping bills were accompanied by ARE 1 Forms to show that the export goods we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mill in Surat and that Shri Suresh Ladha offered them to do the export work and that they had neither the knowledge nor money for export and that Shri Suresh Ladha opened two units in their name and that Shri Suresh Ladha used to look after the export work and all the transaction were entered into by Shri Suresh Ladha and fabrics purchased from Shreeji Enterprises and that they were paid some money by Shri Ladha and that fabrics shown in the consignment were not of goods quality and the value should be around Rs. 18 to Rs. 20/- per meter. Shri Suresh Ladha in his statement accepted the above facts that he was looking after the complete work of two units i.e. M/s. Citizen Impex and M/s. Neptune Impex that he put hill finance in these comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of Rs. 25 Lakhs was imposed on Shri Suresh Khandelwal in the case of Neptune Impex and another Rs. 50 Lakhs in the case of Citizen Impex. Similarly a penalty of Rs. 5 Lakhs in the case of Citizen Impex and Rs. 10 Lakhs in the case of M/s. Neptune Impex was imposed on Shri Rakesh Agarwal, proprietor of M/s. Shreeji Enterprises. All the above persons are in appeal before us. 5. Le Advocate for the appellants submitted that the PMV has been rejected on account of variation in weight, market survey, discrepancy in the ARE-1 regarding the actual manufacturer of the goods and that there is a gap of more than six months between the date of export and market survey etc. 6. As regards weight, it was submitted that the net weight was asc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer. The finding of the Commissioner that the goods mentioned in ARE-1 were not manufactured by M/s. Shreeji Enterprises as has been mentioned in the ARE-1 Form has gone be yond the scope of show cause notice, as no such allegation was made in the show cause notice and therefore this order cannot be sustained as has been held by the Tribunal in the case of Kalyani Sharp India v. C.C.E. Pune -2005 (187) E.L.T. 315 (T-Mum). It was further submitted that the FOB value declared under Section 14 cannot be discarded as none of the ingredient of Section 14 are absent and it is not the case of the department that the seller and buyer have interest in the business of each other. As regards PMV it was submitted that Board vide its Circular No. 69/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he weight being arrived on a sample basis, we find that the weighment was carried out in their presence and at that time they have agreed with the examination report and have not asked for 100% weighment to establish that the weight declared was correct. Once the goods after weighment etc. were seized on account of shortage, it was at that point of time that they should have asked for 100% weighment and once having not done the same can not be challenged now. We further note that even though the goods are lying with the Customs and have not been cleared due to imposition of high redemption fine, the appellants have still not asked for 100% weighment of the goods to establish that there was no shortage in weight. In view of this, finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has given his opinion as per the sample presented to him. Nor has the appellant produced any, evidence to show that the fabrics being exported by them were power printed. 11. In view of above, we find justifiable reason to reject the PMV as first they did not match in weight, the value declared in ARE-1 was incorrect in as much as M/s. Shreeji Enterprises have never manufactured as admitted by them and market survey brings out the value as Rs. 20/- per square meter which at best would be Rs. 30/- per meter, even if the statements of Shri Rakesh Agarwal, proprietor of M/s. Shreeji Enterprises and Suresh Ladha are taken into account. As regards the Apex Court decision in the case of Vishal Exports (cited supra), the same is not rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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