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TMI Blog2024 (1) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was flawed and faulty and therefore the appellant is also not liable for demurrage and the lower authority is directed to issue the demurrage waiver certificate to the appellant as contemplated under Regulation 6 (1) (L) of the Handling of Cargo in Customs Areas Regulations, 2009. Appeal allowed. - HON BLE SHRI S. S. GARG , MEMBER ( JUDICIAL ) Mr. R. Chandrasekaran , Advocate For the Appellant Mr. M. Selvakumar , Assistant Commissioner ( A. R ) For the Respondent ORDER The present appeal is directed against impugned order dated 27.07.2023 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has upheld the order of the original authority and rejected the appeal of the appellant. The original authority vide its order dated 26.04.2023 has passed the order as under : ORDER I. I reject the total declared value Rs. 2,51,40,678/- (Rupees Two Crore Fifty One Lakh Forty Thousand Six Hundred and Seventy Eight Only). for the shipping bills as detailed in Table-I supra in para 2 and I redetermine it as Rs.1,07,39,500/- (Rupees One Crore Seven Lakhs Thirty Nine Thousand Five Hundred Only) in terms of Rule 6 of CVR 2007, read with Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.45,39,744). vi.SB No.3131651 dated 28.7.2022 for export of 3850 Pyjamas sets contained in 11 cartons valued at US $8.9 (Rs.704.88) totaling US$ 34265 (Rs.27,08,867) and 7200 Men s vests contained in 50 cartons valued at US $ 2.9 (Rs.229.08) totaling US $ 20880 (Rs.16,50,697/-) the total cargo valued at Rs.43,59,564/-. vii. SB No.3132206 dated 28.7.2022 for export of 13,536 pieces of Men s vest contained in 47 cartos valued at US $ 2.9 each totaling US $ 39254.4 (Rs.31,01,028/-). 3. The appellant utilized the CHA services of M/s.Cargo Placement Services Agencies P. Ltd., Chennai for export of goods. The shipping bills were submitted for examination and clearance on 28.7.2022 and the goods were examined and assessed for export on the same date and Let Export Order was issued for all the seven shipping bills on 29.7.2022. In all the seven shipping bills, a total FOB value was arrived at Rs.2,51,40,678/- by the exporter which involved a duty Drawback of Rs.5,33,080/- and ROSCTL (Rebate of State and Central Taxes and Levies on Export of Garments and made ups) benefit of Rs.12,40,165/- given by the Ministry of Commerce. The value furnished by the exporter, was accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the impugned order is bad because no show cause notice was issued when the goods of value of more than Rs.2 crores were seized and the statements were recorded under the threat of arrest, prosecution, coercion. He further submits that there was flagrant violation by the lower adjudicating authority in the application of Customs Valuation (Determination of Value of Export Goods) Rules, 2007. He further submits that the allegation of the DIU is totally flawed in as much as the contention that the supply chain appears to be fake / manipulated is totally unfounded in as much as the appellant procured the export goods from M/s.P.B. Exports, Tirupur, which is registered with the GST authorities and have been filing periodical returns. Further a sum of Rs.24,894/- was also paid as GST by the said firm on three invoices through which the export goods were sold to the appellant. Ld. Counsel further submits that no enquiries have ever been made by the DIU with the firm M/s.P.B. Exports, Tirupur as to its existence, bonafide and credentials. The procurement price of Rs.2,49,19,544/- was favourably compared with the FOB export price of Rs.2,51,85,118/- declared in the impugned sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as accordingly done by the Revenue. He further submits that the lower authorities have ascertained the market value as per the Valuation Rules and the same was endorsed by the appellant and now appellant cannot deny the acceptance of the market value. 7. I have considered the submissions of all the parties, perused the materials on record. 8. The issue in hand is regarding the valuation of the goods for export. As per the appellant, its total value is Rs.2,51,40,678/- whereas as per the Revenue, the value comes to Rs.1,07,39,500/-. Further, I find that the impugned order passed by the learned Commissioner has mechanically confirmed the lower adjudicating authority s order by simply placing reliance on the statement of the Manager of the firm and the statement dated 30.09.2022 of the appellant. The lower appellate authority did not take into consideration the following facts and the legal grounds while passing the impugned order viz. (a) that the statement of the Manager and the appellant were obtained under coercion, duress and threat of arrest. (b) No show cause notice was issued by the DIU. (c) Failure of application of Customs Valuation (Determination of Valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit. 10. On perusal of the aforesaid rule it can be noticed that the value needs to be arrived based upon cost of production of manufacture or processing of export goods, charges for design and an amount towards profit. In the case in hand, the Revenue authorities though being made aware of the supplier of the goods which were exported, did not bother to check with the supplier to ascertain the correct value of the goods. In our considered view, jumping directly to provisions of Rule 6 of the Valuation Rules to ascertain value by residual method is not in consonance of the law inasmuch as it is settled law that to determine value of goods sought to be exported, the provisions of Valuation Rules should be applied sequentially. To our mind, the appellant have a case in their favour as they have demonstrated that the goods which were exported were procured from a credible supplier whose name, address and VAT number were available. In the absence of any contrary evidence, we hold that the transaction value as declared by the appellant for claiming duty drawback is the correct value. 10. This decision of the Tribunal was subsequently relied upon by the Division Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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