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TMI Blog2017 (4) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ed scrutiny. We are conscious that this inference may well be of speculative nature but, in the circumstances, is not a factor that is easily disregarded - A re-determination for the purpose of establishing eligibility of export incentive does not stand on the same footing as an assessment which is a statutory pre-requisite for levy of duties. Therefore, the findings of the adjudicating authority are not in any way compromised. The appellants have not been able to furnish adequate justification for their appeal to sustain - appeal dismissed - decided against appellant. - C/467 to 469/2008 - A/86565-86567/17/CB - Dated:- 30-3-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri J C Patel, Advocate for the appellant Shri V R Reddy, Assistant Commissioner (AR) for the respondent ORDER Per CJ Mathew The appeals before us, filed by M/s Somani Cotsynth Ltd, Shri Purshottam Somani and Shri Radhyshyam Somani, seek the quashing of order-in-original no.21/2007 CC (X) dated 31st January 2007 of Commissioner of Customs (Export), Nhava Sheva which has imposed penalties of ₹ 5,00,000 each on the appellant-individuals an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Commissioner of Customs v. Unimac (I) Ltd [2006 (204) ELT 95] which has been upheld by Hon'ble Supreme Court, Learned Counsel for appellants asserts that assessment and clearance having been effected in accordance with section 51 of Customs Act, 1962, there is no scope for re-determination of value and confiscation of goods. Relying on the decision in re Unimac (I) Ltd, Polynova Chemical Industries v. Commissioner of Customs [2005 (179) ELT 173], Frost International Ltd v. Commissioner of Customs [2006 (206) ELT 451] affirmed by Hon'ble Supreme Court, Kanhaiya Exports (P) Ltd v. Commissioner of Customs [2006 (204) ELT 295], Commissioner of Customs v. Sam Merchandising P Ltd [2013 (288) ELT 418] and Kanak Metal Industries v. Commissioner of Customs [2012 (275) ELT 115] as affirmed by Hon'ble Supreme Court, it is contended that adoption of a value other than that based on contemporaneous export of identical goods is without authority of law. Citing the decision in re Polynova Chemical Industries and in re Sam Merchandising P Ltd, the jurisdiction to restrict credit has been challenged. It is also submitted that the adjudicating authority has failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t apply to cases where the export of goods is prohibited. The Tribunal in arriving at the said conclusion referred to two of its earlier decision in Badriprasad Pvt. Ltd. v. CCE [1995 (80) ELT 624] and Shilp Export v. CCE [1996 (83) ELT 302]. 16. This Court in Prayag Exporters (supra) , dismissed the appeal of the Commissioner of Customs, stating: This appeal is filed against the judgment and order dated 18th August, 2000 passed by the Customs, Excise Gold (Control) Appellate Tribunal, Western Zonal Bench at Mumbai in Appeal No.C/195/V/2000-Bom., whereby the Tribunal has arrived at the conclusion that it has taken consistent view that Clause (d) of Section 113 of the Customs Act would apply in cases of prohibited goods and would not apply to the facts of the present case. Admittedly, goods in question are not prohibited for export and no export duty is leviable on the said goods. In this view of the matter, no interference is called for with the impugned judgment and order. Hence, this appeal is dismissed. 17. However, it appears, the same Bench considered the matter at some length in Om Prakash Bhatia (supra) and opined that the exporters were obliged to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r piece. They had done all investigations to show that the appellant had not stated the correct market value of the goods exported. We cannot say that the appellant was not given an opportunity to prove his bona fides. In fact, summons was issued to him to produce all the relevant documents. Hence, violation of principles of natural justice cannot be sustained. The Commissioner in his order has relied on the Apex Court's decision in the case of Om Prakash Bhatia (Supra). That case relates to availment of drawback. The drawback claim is based on the FOB value of the good exported. When the FOB value is inflated, one gets higher drawback. Inflation of export value is also resorted to in order to transfer illegally acquired foreign exchange from other countries. In those cases, the export would be only a cover up or a device to transfer money. Therefore, the argument that foreign exchange has been realized and therefore, no action should be taken under the Customs Act for over-valuation is not acceptable. It would be in fitness of things, to reproduce the observations of the Apex Court in Para 18 of the above-mentioned decision. 18. Hence, in cases where the export value i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears to be reasonable. As the impugned goods are held liable to be confiscable, penalty under Section 114 is justified and upheld. In the result, we dismiss the appeal. 6. That the two directors of the exporter company can also be proceeded against has been decided by this Tribunal in Ramesh Jain v. Commissioner of Customs (G), Mumbai [2009 (238) ELT 783 (Tri-Mum)]. 7. Though the Tribunal has held in re Unimac (I) Ltd that- 10. Further, there is no evidence that like goods were exported by others at different prices. The lower value declared by Russian importers in their country is not relevant to hold that the exporters/respondents over-valued their goods, in the light of the Tribunal's order in Frost International Ltd. Others ( Order Nos.A/704-713/WZB/2006, dated 8-8-2006 [2006 (206) ELT 451 (Tribunal)]), and further there is no evidence to show that the value declared in Russia was correct. FOB value of export goods cannot be determined with reference to the market price in India, in the light of the language of Section 14(1) of the Customs Act, 1962, which provides that the value of import or export goods shall be deemed to be the price at which such or l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power and in the absence of any specific provision or power conferred upon such officer to review or alter or cancel the said order, such order cannot be said to be an administrative order. A re-determination for the purpose of establishing eligibility of export incentive does not stand on the same footing as an assessment which is a statutory pre-requisite for levy of duties. Therefore, the findings of the adjudicating authority are not in any way compromised by the ruling of the Tribunal supra. 9. The reliance placed on the decision of the Tribunal in re Kanhaiya Exports (P) Ltd may not also stand the appellants in good stead with that decision having been handed down in the context of the export proceeds having been received in full and the failure to sustain the value adopted in proceedings by customs authorities. Likewise, the decision in re Sam Merchandising Pvt Ltd is not applicable to the present circumstances which pertains to goods that are yet to be exported and on which the export proceeds are yet to be realised. 10. Considering the factual matrix emerging from the analysis supra, it would appear that the appellants have not been able to furnish ade ..... 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