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TMI Blog2001 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... t each shirt should be considered to have a FOB value of Rs. 49.24 as against the value claimed of Rs. 466/-. The drawback claim on each shirt which comes to Rs. 75.56 is more than the market price and therefore not admissible in terms of clause (b) of Section 76 of the Act. The evidence that the Department relied upon for the value of the goods was the enquiries conducted in the market by the Department's officers. Adjudicating on the notice, the Commissioner has determined the FOB value to be Rs. 300/- and instructed payment of drawback calculated on this amount. Hence this appeal. 2.In the order impugned in this appeal the Commissioner has accepted that the goods were not liable to confiscation under clause (d) of Section 113 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereafter goes on to say that in the case of drawback the position is different. "Since the drawback amount as a percentage of the FOB value there is a clear recognition, for export promotion, and the exporters are free to sell their goods at a price which one can bargain with the foreign supplier." "In this case since the foreign exchange has been realised since the supplier of the goods has been paid in cheques and further since admittedly the market value is more than the drawback amount claimed, no questions can obviously be asked." He thereafter concludes by saying that "though legally there is no bar under Section 76 to deny drawback in such case" but in view of judgments permitting fair value to be determined for export, val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality of the goods". The contention of the counsel for the appellant that the Commissioner could not substitute his own subjective opinion to determine the value of the shirts has to be accepted. Even going by the reasoning that he has adopted, leading to the conclusion that the shirts have not been shown to be undervalued, his decision to limit their value is arbitrary and irrational. The departmental representative's contention that the appellant has already been given sufficient benefit by the Commissioner is no answer. Since the department, in the Commissioner's own words, has not established undervaluation, the value declared by the appellant is required to be accepted and the drawback calculated upon it paid to it. 6.Appeal allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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