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TMI Blog2007 (8) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find that the dispute in the present appeal relates to the export value of 60,000 pcs. of CD Roms exported by M/s. Advance Export to one M/s. Wajilam Export (Singapore Pvt. Ltd., Singapore). The said goods were exported under five shipping bills all dated 15-12-1998 in terms of a contract dated 2-11-98 entered into by M/s. Advance Exports with M/s. Wajilam Export of Singapore. The goods were exported under claim for DEPB at the declared value of US $ 18 per CD Rom. In support of the value, the appellants produced on record the invoices under which the same were procured by them from the Indian Manufacturer M/s. Padmini Polymers Pvt. Ltd. The goods were cleared by M/s. Padmini Polymers under AR-4 at the purchase price of Rs. 750/- per pc. The payment for the said goods was made by M/s. Advance Exports to M/s. Padmini Polymers vide cheque dated 15-2-1999 drawn on State Bank of Travancore, Ahmedabad. The goods were assessed on the shipping bill and order for clearance for export under Section 51 of the Customs Act was passed and the goods exported. 3. However, subsequently on the basis of some information as regards the over-valuation of CD Roms, investigations were initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luation of the goods cannot be accepted. Similarly, as regards the realization of the value of the goods from foreign buyers, he submits that it is not disputed by the Revenue that the entire realization stands received by the appellant and the fact that a part of the same has come directly from Singapore and another part stands remitted from Dubai, cannot be made the basis for discounting the value. He also draws our attention to the 'activity report' of the Bank produced on record by learned Consultant, Shri Mondal appearing for the Revenue, which makes it clear that the remittance was with reference to the export made to M/s. Wajilam Exports. He also draws our attention to the various decisions, in support of his above submissions and particularly referred the four cases of import-export of CD Roms mentioned in the show cause notice and submits that all the relevant cases of the Revenue stand rejected by the Tribunal. The various pleas raised by the appellant stand summarized as follows :- (i) Declared value of export goods cannot be rejected under Section -14 of the Customs Act, 1962 in absence of contemporary exports of identical goods at lower price. • Kanhaiya Exports ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank realization certificates clearly show that even the amount remitted by G.A. International was against the invoices raised on Wajilam Exports and the said remittance has been appropriated by the bank towards the said export invoices. (viii) Even under the Foreign Exchange Regulation Act, the remittance by G.A. International has been accepted towards the export invoices and no objection has been raised by the RBI. (ix) The bank activity report relied upon by the department shows that the amount remitted by G.A. International is on account of Wajilam Exports. (x) Assuming while denying that there was over-valuation of the goods exported under DEPB claim, the customs have no jurisdiction to pass an order restricting the DEPB credit and the same can only be done by the DGFT authorities. • Polynova Chemical Industries v. Commr. of Cus., Mumbai - 2005 (179) E.L.T. 173 (Tri.-Mum). • Alphonse Joseph v. Commr. of C.Ex. Cus, Bangalore - 2006 (204) E.L.T. 487 (Tri-Bang). • Kobian ECS India Pvt. Ltd. v. Comm. of Customs, Mumbai - 2003 (157) E.L.T. 662 (Tri.-Mum). • Adani Exports Ltd. v. Assistant Commr. of Cus. , Cochin - 2006 (199) E.L.T. 613 (Tri.- Bang). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identiary value to the fact of the deposit of money in the Bank Account of M/s. Adani Exports. 9. Further, the purchase value of Rs. 750/- per CD Rom, does not \ stand demolished by the department by conducting any investigation at the manufacturer's end. No statement of M/s. Padmini Polymers stand recorded. In fact, we note that M/s. Padmini Polymer are engaged in the manufacture of CD Rom, which they are supplying to various merchant importer. Tribunal in the case of Commissioner of Customs, Kandla v. Crown international - 2006 (203) E.L.T. 120 (Tri.-Mum.) has accepted the sale price of Rs. 640/- per pc. by the same M/s. Padmini Polymers. Similarly M/s. Padrnini Polymers are also engaged in the export of goods themselves. Such export price was also accepted by the department. Further, in terms of the Board Circular No. 69/97, dated 8-12-1997, if the export price within 150% of the purchase price, the same is ought to be accepted by the Revenue as held by the Tribunal in the case of Commissioner of Customs, Kolkata v. Ramapati Exports - 2002 (142) E.L.T. 77 (Tri.-Kol.), Commissioner v. Balaji Industrial and Agricultural Castings Pvt. Ltd. - 2005 (188) E.L.T. 318 (Tri.) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Archana Wadhwa) Member (Technical) Member (Judicial) Customs Appeals No. 206 to 209 of 2004 13. [Order per : M. Veeraiyan, Member (T)]. - I have gone through the order proposed by my learned sister Mrs. Archana Wadhwa, Member (Judicial). As I am not in a position to agree with the same, I proceed to record a separate order. 14. To enable better appreciation of the issues, it may be appropriate to recapitulate the relevant facts, in brief, which are as follows: (a) In these proceedings, the following three companies/firms of Adani Group are concerned/involved, (i) M/s, Advance Export, is a partnership firm of four brothers, namely, Rajesh Shantilal Adani, Vinod S. Adani, Vasant Adani and Gautam S. Adani, (ii) M/s. Adani exports Ltd. has Shri Rajesh S. Adani as M.D. and Mr. Gautam S. Adani as Chairman, (iii) M/s. GA. International is a firm operating from Dubai and is managed by Shri Rajesh S. Adani (who is a partner of Advance Exports and a Director of Adani Exports Ltd.). In addition to the above 3 companies/firms Singapore based Wajila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. (h) The Commissioner by his order restricted the FOB value of CD Roms to Rs. 1,05,43,085/- as against the declared C F Value of Rs. 4,65,78,600/- and also denied DEPB credits to the tune of Rs. 48,23,968/- (out of total credit of Rs. 63,00,000/- granted to them in DEPB bearing No. 0802593, dated 15-6-1999) as inadmissible. In addition, he imposed penalty of Rs. 30,00,000/- on M/s. Advance Exports, Rs. 4,00,000/- on M/s. Padmini Polymers Ltd., Rs. 5,00,000/- on M/s. G.A. International, Dubai and Rs. 5,00,000/- each on Shri Rajesh Shantilal Adani, Shri Vinod S. Adani. (i) Against the said order, M/s. Advance Exports, Shri Rajesh S. Adani, G.A. International and Shri Vinod S. Adani are in appeals. 15. It is to be noted that this is an export under claim for DEPB benefits. If the goods were over-valued then, consequentially, there would be claim for excess credit leading to loss of revenue at the time of import. 16. The valuation of goods for customs purposes are covered by the previous Section 14 of the Customs Act which is reproduced below : "Section 14. Valuation of goods for purposes of assessment - (1) For the purpose of [the Customs Tariff Act, 1975 (51 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious allegations were made in the notice against them and their important business associate namely, Advance Exports, they have chosen to keep silent; they have not filed any reply. In the absence of rebuttal by PPL it has to be presumed that they have nothing to say in defence on the allegations made against them. 20. It is important to remember the burden of proof depends upon the nature of issue and the persons concerned. I am reminded of a story and incident in this regard. A highly respected religious person was admonishing one of his disciples for small aberration but was very kind to a devotee with full of vices. He was not biased as he wanted both to improve from their respective positions. A school teacher was particularly happy with a student who secured 60% marks, praised him in front of entire class; at the same time severely admonished another student who has obtained 80% marks. Was the teacher biased? No. The student who got 60% marks was previously getting in the range between 30 to 40% and has remarkably improved his performance whereas the second student who got 80% was earlier getting in the range of 95 to 100% and therefore, teacher felt unhappy and duty b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arrive at the value based on best judgment method? The adjudicating authority could not have ignored the amount which was directly received from Wajilam Exports (even if the same was doubted to be on the higher side) and therefore, he has adopted the said amount as the price for export for the purpose of export benefits and the said decision is reasonable and legally sustainable. 24. It is one thing to adopt a different price for assessment purposes, it is altogether a different thing to punish people for misdeclaration of the value. For example, on the import side, when value of an import consignment is enhanced, merely based on contemporaneous higher import value, there cannot be justification for imposition of penalty. In this case, while there is enough justification to ignore the value declared and restrict the value for the purpose of extending DEPB benefit but on the same level of evidence to impose penalty cannot be justified. 25. In the light of the above, (a) Appeal by M/s. Advance Exports is partly allowed by setting aside the penalty and upholding the denial of DEPB credit to the extent of Rs. 48,23,968/- (Rupees Forty-eight lakhs twenty-three thousand nin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also based his findings upon the fact that M/s. Padmini Polymers Ltd. (hereinafter referred to as PPL), who supplied the CD ROMs to the exporter firm, did not respond to the show cause notice. In other words, he has held that the burden of proving that the value of the goods had been correctly declared lies upon the exporter and supplier of the goods. 30. I find that the supplier's price of Rs. 642.00 to Rs. 730.00 per piece has not been disputed. As per CBEC Circular No. 69/97-Cus., dated 8-12-1997 the FOB value cannot be rejected if it is within 150% of the manufacturer's price and in the present case, since the declared price for export is Rs. 760/-, it falls within the above parameters. Further, the declared value of export goods cannot be rejected under Section 114 of the Customs Act, 1962, in the absence of any contemporary export of identical goods at lower price as held by the Tribunal in the decisions cited by the appellants before the Tribunal, namely the decisions in the case of Kanhaiya Exports Pvt. Ltd. v. C.C.E., C.C. v. Ramapati Exports, Polynova Chemical Industries v. C.C., Akshay Exports Industries v. C.C. and C.C. v Crown International cite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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