9911796707
TMI Blog1998 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... res issued by the Ministry of Commerce and permit the petitioner-firm to use the credits granted in terms of the said licences. 2.Petitioner is a firm engaged in business of exports of various commodities. The Government of India through the Ministry of Commerce has formulated a scheme called Duty Entitlement Pass Book Scheme (DEPB Scheme), which is decided in Chapter 7 para 7.25 of the Export-Import Policy for the period 1997-2002 announced by the Ministry of Commerce, Government of India. 3.As per the said scheme, on export of specified goods, the exporter will be eligible to claim a credit at a specified percentage of Free on Board (FOB) value of exports. The rate at which the credit can be availed and the items against export of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granting of credits is as a percentage of the export value, to check the correctness of the export value declared in the shipping bills. The concept known as present market value has been described in the Export-Import Policy. 8.Paragraph 7.36 of the Hand Book of Procedure 1997-2002 provided that in respect of products where the rate of credit against such export products is 15% or more, the credit given should not exceed 50% of the present market value of the export products. 9.It is the case of the petitioner that in terms of Circular No. 15/97, dated 3-6-1997 the Ministry of Finance for the purpose of percentage of credit, stated that the present market value should be verified by the proper officer of the Customs and at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued the following DEPB licences on 4-6-1998, 19-5-1998, 20-5-1998 and 21-5-1998 which has already been stated while extracting the prayer of the writ petition. 11.It is stated that after obtaining DEPB licence, the petitioner submitted the same to the third respondent for verification as per the provisions of paragraph 7.43 of the Hand Book of Procedure and the petitioner request for early completion of verification. Inspite of several requests, there was no response from respondents 2 and 3. 12.On further enquiry the petitioner came to know that respondents 2 and 3 wanted to verity the correctness of the FOB value declared in respect of subject exports and make detailed enquiries. On coming to know about the proposed verification, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the DEPB scheme far in excess of the entitlement. It is stated that the value of the goods will be far below i.e., between 7.00 lakh to 11.00 lakh whereas a sum of Rs. 82,71,679/- for foreign exchange has been brought into the country by way of realisation of the export products. According to the respondents, it is an exaggerated value, it is also stated that investigation was initiated at the time of export itself and the same could not be completed owing to complex nature of export product viz., Software as it requires an intricate study and also owing to non-cooperating nature of the petitioner in not producing the required documents of procurement and manufacture and not appearing before the department officials to answer queries with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the value is high. As per Circular No. 69/97, dated 8-12-1997 it has been declared that in all cases where show cause notice challenging the declared present Market value is issued within 30 days from the date of export, the present market value declared shall be deemed to have been accepted. In view of the deeming provision, the value declared by the petitioner must be taken as accepted by the department. 17.The department cannot say that in respect of circulars they are entitled to hold a further enquiry. They are bound by circulars, especially in view of the decision reported in 1997 (94) E.L.T. 460 (S.C.) of the Hon'ble Supreme Court (Collector of Central Excise, Patna v. Usha Martin Industries) wherein their Lordships considered w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to the instructions issued by the Board. It is a different matter than an assessee can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the department, more so when others have acted according to such instructions, vide Collector of Central Excise, Bombay v. Jayant Dalal Private Ltd. [1996 (88) E.L.T. 638], Ranadey Micro Nutrients v. Collector of Central Excise [1996 (87) E.L.T. 19], Poulose and Mathen v. Collector of Central Excise [1997 (90) E.L.T. 264], British Machinery Supplies Co. v. Union of India [1996 (86) E.L.T. 449]. Of course the appellate authority is also no bound by the interpretation given by the Board but the assessing officer cannot take a view contrary to the Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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