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TMI Blog1999 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority for de novo consideration, after making fresh enquiries from reputed exporters in association with the party's representatives. 3.Accordingly, the original authority made fresh enquiries but felt that there was no reason to depart from the value of Rs. 210/- fixed in the earlier original order. The applicants filed an appeal before the Appellate authority. Holding the view that the lower authority has acted in accordance with the Government of India's instructions, the appellate authority rejected the appeal. 4.Sh. A.K. Jain, learned Advocate, attended the personal hearing on 2-11-1998 and made elaborate written submissions. The points raised by him, in brief, are that the appellate order is countrary to the views of Tariff Conference of Collectors of Customs held at Madras on 21st and 22nd July 1994; that the appellate order is contrary to the Tribunals judgment in case of M/s. Dimple Overseas Ltd. [1995 (76) E.L.T. 48 (Para 16)] which subsequently was confirmed by the Supreme Court [1995 (80) E.L.T. 10]; that the relied upon judgment of Calcutta High Court in the case of Pankaj V. Sheth [1997 (90) E.L.T. 31 (Cal.)] is contrary to an earlier judgment of the same C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and does not limit the jurisdiction of Customs authorities to determine the value of goods only in cases of assessment of duty. (b) Section 14 ibid is utilised for determination of value under several other enactments viz Foreign Trade (Regulation) Rules, 1993, Foreign Exchange (Regulation) Act, 1973 etc., nevertheless misdeclaration of value under such other enactment is a deemed prohibition under Section 11 of the Customs Act. (c) Correctness of value declaration may be investigated into by the Customs authorities and for such purpose resort may be had to Section 14(1) ibid. (d) If the goods are in fact over invoiced, this means that the exporter is realising proceeds not really relatable to the export made. Yet, by virtue of the exporter's declaration the excess amount would enjoy the benefit of the concessions by way of duty free imports to which they would otherwise not be entitled. (e) In fact the receipt of Foreign Exchange might in reality be a mirage. Apart from the public revenue being defrauded of large amounts of money both on account of Income-Tax and on account of Customs duty by a false declaration of value of exports by the exporter, no benefit, would accr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is also based on the said market enquiries and not on the Assistant Commissioner's personal assessment. Therefore, this plea is rejected. 11.The applicants have pleaded that the exporters, from whom the said market enquiry was conducted are related to either a departmental personnel or a Customs House Agent and that their representative, who was associated with the said market enquiry, was neither a technical nor a commercial man and was taken to the original authority without even being told of the purpose. Government observes that nothing is forthcoming from the case records that the applicants had ever placed on record their reservations about the reliability of the exporters, to whom the samples of the impugned goods were shown in the presence of their representative and from whom the market enquiries were made. Therefore, Government is inclined to agree with the Appellate authority's observation that to assail credentials of the exporters at belated stage is neither proper nor appropriate. Further, the applicants representative is the same person who was their chief executive during the relevant period and has handled the case from the very beginning. He had even appeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother argument that except in terms of the provision of Section 76 of Customs Act, 1962 the drawback cannot be denied to an exporter by the department; that the drawback claimed by them is about Rs. 140/- per set and as against it the market price ascertained by the department is Rs. 210/-, i.e., the drawback claimed is less than the ascertained market price. Therefore, the drawback as claimed is payable under Section 76 ibid. Section 76 of the Customs Act, 1962 reads : "......... no drawback shall be allowed ***** in respect of any goods the market price of which is less than the amount of drawback due thereon ......" 15.It is clearly evident that to comply with the provisions under Section 76 ibid, the department may resort to ascertaining market price of the goods to work out the eligibility of the exporter. Government further observes that the reference in Section 76 ibid is to `Drawback due' and not drawback claimed i.e., the amount of drawback which is payable in accordance with law. 16.The amount of drawback due on export goods is ordinarily determined on the basis of rates indicated in the drawback schedule. The drawback schedule is contained in the Public Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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