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TMI Blog2024 (5) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... weight of threading bars proposed to be exported in the impugned consignment, the said proprietor mentioned that the threading bars were to be exported based on per piece criteria. Hence any difference in weight of the consignment for threading bars is irrelevant for the alleged misdeclaration and undervaluation. In the light of this kind of statement of respondent himself, we proceed to examine the findings goods wise i.e. for carpets and threading bars separately as follows: Carpets - We observe that commissioner (Appeals) has held that the misdeclaration of description of carpets stands established, hence, the said export goods merit confiscation u/s 113 (one of Act). Accordingly, the confiscation of carpets is upheld. Once based upon the said two reports, the description of carpets is held to be wrong even by Commissioner (Appeals) and the respondent herein have not challenged that part of the impugned order. The findings that the carpets which were to be exported by the appellant were mis-declared as far as their quality and quantity is concerned are hereby upheld. There is no denial rather it can also be judicially noticed that carpets made out of wool have more value than th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the findings with respect to threading bars are confirmed. The appeal is accordingly partly allowed. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Rajesh Singh, Authorized Representative for the Department Shri A.K. Seth, Shri Chinmay Seth and Ms. Khushboo, Adovocates for the Respondent ORDER The present appeal has been filed by the department to assail the Order-in-Appeal No. 1015-1016/2021-22 dated 14.09.2021 whereby the order of original adjudicating authority has been modified to the following effect: (i) Redetermination of value is set aside and declared value is accepted. (ii) Confiscation of Polyester carpets is upheld and confiscation in respect of rest of the goods is set aside. (iii) Redemption fine under section 125 of the Customs Act, 1962 is reduced to Rs. One lakh and penalty under Section 114(iii) is reduced to Rs. One Lakh only. 1.1 the facts in brief for the adjudication of present appeal are as follows: Respondent-exporter M/s. ABN International filed four shipping bills at ICD, Tuglakabad, New Delhi for export of threading bars M-8/M-10 and machine made woolen carpets to the consignee in Dubai. Department had specific i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets without interlocking borders. The estimated price was also reported as USD 1.00 to 1.50 sq. feet. 1.4 The department also got conducted a market enquiry in the presence of exporter and the independent witnesses. Different values of respective goods covered under four of the shipping bills was prescribed. Since the appellant had accepted the mis- declaration of description and value, he also admitted that the articles were overvalued in order to avail maximum export benefits and that for past clearances also similar overvaluation has been done by the appellant that he requested for not issuance of any formal show cause notice nor for any opportunity of personal hearing. Accordingly, the issuance of show cause notice was waived off and vide Order-in-Original No. 79/2019 dated 27.06.2019, the total declared FOB value of the goods intended to be imported vide impugned four shipping bills was rejected and re-determined under Rule 8 of Customs Valuation (Determination of value of Export Goods) Rules, 2007 and was re-determined at Rs.1,21,58,910/- as against the declared FOB value Rs.11,75,95,061/-. The goods were order to be confiscated under Section 113(i) of the Customs Act, 1962.H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the carpets were not woolen carpets as were declared by the respondent exporter. The value for synthetic carpets is much lesser than that of woolen carpet, hence the overvaluation was rightly observed by the original adjudicating authority. The declared value is therefore wrongly accepted by Commissioner (Appeals). 4. It is further mentioned that the mis-declaration of quality and value of the goods was duly admitted by the proprietor of the respondent-exporter and even by the G-card holder of the CHA of the exporter. The exporter had overvalued and misclassified the goods only to avail access drawback besides MEIS and IGST refund. The mere submission that by the time impugned consignment and the goods therein were detained no drawback was claimed is highly insufficient to absolve the exporter from the alleged illegal act. Commissioner (Appeals) has committed an error while being liberal in reducing the amount of penalty. 4.1 It is further submitted that Commissioner (Appeals) has wrongly observed that there is no finding about the value declared by the respondent-exporter was not the transaction value as required in terms of Section 14 of the Customs Act, 1962. The declared value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r need not to be concerned with the prevailing market price in India of the goods sought to be exported. While relying upon Section 14 of Customs Act, 1962, it is mentioned that Commissioner (Appeals) has rightly held lack of evidence about the fact that the buyer and the respondent had any interest in the business of each other and the price was sole consideration for the same. Since the value declared by the respondent was correct, the penalty has rightly been reduced to minimal (from 7 lakhs to Rs. 1 Lakh and from 30 Lakh to 1 Lakh). With these submissions the order under challenge is prayed to be upheld and appeal filed by the department is prayed to be dismissed. 6. Having heard the rival contentions and perusing the entire record. 7. In the present case, admittedly the show cause notice was not served upon the respondent based on his own request to waive off the issuance of show cause notice and of any opportunity of personal hearing. Apparently, the respondent, the proprietor thereof namely Shri Ankit Sehgal while being examined on 30.05.2019 had mentioned him to be the trader who purchase the goods/carpets to export the same. However, he admitted that the description of car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of re-determined value of the carpets is therefore held to be contradictory finding by Commissioner (Appeals). 8.2 The value has been rejected also on the ground that the market enquiry cannot be considered in the case of export of goods. Respondent has also relied upon Section 18 of Foreign Exchange Regulation Act but we observe from the record that the market enquiry was conducted in presence of the respondent with his own consent. The said consent has never ever been withdrawn. Secondly, the value arrived in the market survey is in corroboration to the value given by the government testing labs CRCL. Hence the entire case law as has been relied upon by the Commissioner (Appeals) for rejecting the value of market enquiry is held not applicable to the given set of facts and circumstances of the present case. We hold that the case law has wrongly been quoted while rejecting the re-determined value with respect to carpets. The modification in the Order-in-Original to that effect is therefore ordered to be set aside. 9. Threading bars Apparently and admittedly the quality and number of pieces of threading bars to be exported vide impugned shipping bills (two for threading bars an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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