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TMI Blog2008 (10) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... - C/82-83/2009-(PB), - Dated:- 21-10-2008 - S/Shri S.S. Kang, Vice-President and Rakesh Kumar, Member (T) Shri V.K. Agarwal, Advocate, for the Appellant. Shri A.K. Madan, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)].- The allegation against the Appellants is that during the period from Oct '2001 to Jan '2002, they grossly overinvoiced their exports of "Ready-made garments" and "Socks" to UAE and in this manner, have fraudulently claimed the drawback amounting to Rs. 21,55,788/-. The basis of this allegation is that - (a) When the value of the exported goods declared by the consignees in the UAE in the "Import bill" filed by them, which was procured through Consulate General of India in UAE, was compared with the FOB value of the same goods declared by the Appellant in the respective shipping bills, the import value declared by the consignee in the UAE were found to be about 1/25th of the FOB value declared by the Appellant in the shipping bills, and this indicates that very cheap and inferior quality goods were being exported by the Appellants by heavily overinvoicing the same, with intention to fraudulently claim duty drawback, and (b) Shri Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9,60,096/- had been claimed in respect of export of three consignment of socks. The socks had been purchased in India at Rs.18/- per pair and had been exported at the FOB price of Rs. 64/- per pair. No inquiry has been conducted by the Department that market price of the socks was less than the drawback claimed. Similarly, no such inquiry has been conducted in respect of readymade garments. (4) If US$ 6380 mentioned by the consignee in Dubai in the Import bill filed before Dubai Customs in respect of the three shipments of ready-made garments, covered by the Shipping bills No.1185057 dt. 19-10-01, 1185139 dt. 19-10-01 and 1185243 dt. 20-10-01 is accepted as correct, it would mean per piece price of Rs.10/- which is not possible. Therefore, without any other independent evidence, the price declared by the importer in Dubai cannot be taken on the sole basis for determining the correctness of the FOB price of export from India. Moreover, no inquiry has been conducted with the Appellant about issue of parallel invoice by them and there is no evidence in this regard. (5) Hon'ble Supreme Court in case of CC, New Customs House, Mumbai Vishal Exports Overseas Ltd. reported in 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver invoicing of the exports. Shri Gupta, in spite of ample opportunity having been given has not been able to produce the purchase invoice of the socks and the fabrics. The bills of the fabricators who are claimed to have made the garments, bear the dates after the dates of exports, which indicates that the same are bogus. (4) The assessments can be re-opened in the cases of fraud. In this regard, reliance is placed on Hon'ble Supreme Court's judgment in the case of UOI v. Jain Shudh Vanaspati Ltd. reported in 1996 (86) E.L.T. 460 (S.C.) wherein it was held that SCN under Sect 28 of the Customs Act can be issued for demand of duty without revising under Section 130, the clearance order passed under Section 47, if the clearance order had been obtained by fraud. (5) The redemption fine in lieu of confiscation under Section 125 is imposable even if the goods held to be liable for confiscation under Section 113, are not physically available for confiscation. (6) Since the PMV of the goods is less than the drawback claimed and since no remittance have been received, the drawback already claimed by the Appellant is not admissible to them and the same is recoverable from them w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable nor Shri Vinod Gupta of the Appellant's firm in spite of being repeatedly asked, produced the purchase bills for the socks and the fabrics. The price declared by the consignees before the Dubai Customs, has, therefore, to be seen in the background of the Appellant's inability to either produce the purchase bills of the socks and fabrics used for making the garments exported or give the details of the persons from whom the socks and the fabrics had been purchased, and also the fact that the price declared by the consignee in the "import bill" filed before Dubai Customs, is backed by the Appellant's invoice, which in fact, is a parallel invoice issued by the Appellant. There is no denial from the Appellant that this invoice has not been issued by them. Shri Vinod Gupta, in his statement dt. 10-5-02, which has not been retracted, has stated that overinvoicing was being done by him in order to claim higher drawback and that the profit earned in these exports was being shared by him with Shri Sanjay of M/s. Hassan Abdullah Trading Co., UAE. We, therefore, agree with the Commissioner's finding that the goods have been grossly overinvoiced by the Appellant with intention t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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