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TMI Blog2024 (4) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... 824, 10825, 10826, 10827, 10828 of 2022 - FINAL ORDER NO. 10798-10841/2024 X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf the revenue reiterated the grounds of appeals and submits that Ld. Adjudicating authority has not gone into the merits of the case and has observed that since the impugned goods, which have already passed through litigation stages, and attained finality in the case of M/s Colourtex wherein Hon'ble Apex Court had upheld the order of the Hon'ble CESTAT. Further the adjudicating authority has observed that the findings of the Apex Court, are ultimately binding on him. However it appears that the distinguishing facts as given in the instant matter have not been take into account by adjudicating authority. 5. He also submits that in the instant case DRI has re-determined the value of 26 titles of CD ROMS Exported by M/s. Adani Exports Pvt. Ltd. and 8 titles exported by M/s Intercontinental (India) under DEPB schemes and the export prices of various titles covered in the subject shipping bills exported by the respondents have been proposed to be re-determined on the basis of contemporaneous exports prices for the material period, US Customs Report, Invoices of like goods etc. Apex court vide its order No. 2015(326) ELT A35 (SC) dismissed the appeal of the revenue against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented the correct transaction value which has been duly realized. The goods exported by the Respondent being the same and the Respondent having also realized the entire export price, the said decisions squarely apply to the Respondent's case. In fact, the Show Cause Notices issued to the Respondents was based on common investigations in respect of export of CD ROMS by various exporters on the basis of which similar Show Cause Notices were issued to the said three exporters and the Show Cause Notices issued to the Respondent itself placed reliance on the investigations pertaining to the said three exporters. The adjudicating authority has therefore, rightly dropped the proceedings against the Respondent by relying on the said decisions of the Tribunal in the case of Advance Exports, Crown International and Colour Tex, which have been upheld by the Hon'ble Supreme Court. 11. He further submit that the impugned goods i.e. CD ROMS and the method of valuation adopted in the instant case are similar to that which was adopted in the above mentioned decisions and therefore, the issue is no longer res-integra. Ld. Adjudicating authority after placing reliance on the aforesaid orders righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India vs. Gujarat Paraffins Pvt. Ltd. -2015 (322) ELT A179 (SC). 15. We have carefully considered the submissions made by both the sides and perused the records of the case.The issue to be determined in these appeals is as to whether the respondents had validly imported the goods by availing excess export promotion benefits i.e. DEBP/DEEC Credits and whether the duty foregone amount is liable to recovered from the respondents. We find that the case of the revenue in the present matter is that respondents have exported the impugned CD ROMS by grossly overvaluing the same thereby availing higher DEPB credit. Thus causing loss to the exchequer of its legitimate revenue. The exported CD ROMS and its valuation is the crux of present matter. We observed that besides the serious allegation against the respondents, DRI has also initiated investigation against several exporters. We find that DRI also carried out investigation against M/s Colurtex. M/s. Colourtex is a merchant manufacturer and was engaged in the business of export of dyes, chemicals and polished diamonds. M/s Colurtex purchased CD ROMs from M/s. Padmini Polymers Ltd., New Delhi at a price of Rs. 600/- to Rs. 615/- p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtex implies that they have already indulged in conspiracy hatched for defrauding the Government of the Revenue. He has also come to the conclusion that appellant M/s. Colourtex has done so with an intent to facilitate other two persons in hatching conspiracy and he has also held that there was a payment made by the purchasers M/s. Colourtex was beyond the period of 120 days which itself indicates that they were waiting for the consideration to be received from Singapore to make the payments to M/s. Padmini Polymers Ltd. and M/s. Padmini Polymers Ltd. kept silence for two and a half months and did not try and recover any interest from the appellant M/s. Colourtex. He has also recorded a finding that appellant M/s. Colourtex has made an excess payment of more than Rs. 53 lakhs to M/s. Padmini Polymers Ltd. which was returned after two and a half months, and M/s. Colourtex did not seek any interest from them. After recording of the above findings, he holds that the price declared by the appellant of Rs. 764/- to Rs. 770/- per CD ROM cannot be accepted as genuine price and he has also held that the appellant had not declared the present marked value of the goods on the shipping bill". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusive of excise duty, Sales tax and other local taxes plus cost of transportation. Accordingly the amount of credit is to be restricted with reference to the domestic price of the product, and not with reference to the FOB price declared on the GR Form/Shipping Bill. 3. Determination of PMV (i) Manufactures-Exporters (a) As regards Manufacturers-Exporters who export under AR-4 form, where the AR-4 value is declared as the PMV, the same shall be accepted. (b) Where the Manufacturer-Exporters declares PMV which is higher than the AR-4 price, (as PMV is inclusive of transportation costs and domestic duties and taxes), the higher PMV declared may be accepted upto 150% of AR-4 value (exclusive of excise duty). Market enquiry may be caused only if PMV is more than 150% of AR-4 price, and exporter does not agree to lower the PMV below the 150% mark. (c) Where the Maximum Retail Price (MRP) is required to be printed on the products as per the Weights & Measures Act, the MRP indicated on the products may also be accepted as PMV. (d) For the products for which manufacturers have a Printed Price list, or a Catalogue indicating the local price of the products, the price indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said circular. It is also undisputed that the shipping bills were filed along with all the documents and were accepted by the authorities and were cleared for export after considering the said circular causing the verification by SIIB, on a conclusion there being no case of the value being more than 150% of AR4 value. It is also seen from the above circular and more specifically clause 7, that if the said PMV declared by the exporter cannot be accepted by the Assistant Commissioner then a show cause notice has to be issued to the appellant indicating the reasons for reducing the PMV and market enquiries should be specifically assigned to SIIB. In this case, even this situation does not arise as the Assistant Commissioner or the Deputy Commissioner has not issued any show cause notice to the appellant and the shipping bills were approved by SIIB which indicates that the procedures for export and the value declared was in the knowledge and was in accordance with the circular issued by the Board. We also find that clause 7 of the said circular categorically states that if no show cause notice is issued within thirty days from the date of export, the PMV declared shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents. In the said order it was held that DEPB licenses have correctly been issued to the Respondents and they are entitled for DEPB benefits. The department's appeal does not allege that the licences had been cancelled by the Additional Directo rGeneral of Foreign Trade in the instant case. Clearly, the facts are on record that the DGFT has not cancelled the DEPB credit scrips and same were valid in the eyes of law. The DGFT has still not cancelled or modified the DEPB licences already granted. So it is clear that DGFT does not agree with the contention of the department. We are unable to agree with the allegation of the revenue that the exports have been misdeclared and DEPB scrips have been sought for and obtained fraudulently and imports have been made using invalid DEPB scrips. If it is the case of the department that DEPB scrips are fraudulently obtained by the respondents, It would have been appropriate that the department and customs authorities should have taken steps to get the DEPB scrips cancelled by making reference to the DGFT authorities who issued the scrips. Without taking any such action, to say that the DEPB scrips issued by competent authorities are invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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