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TMI Blog2003 (9) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold chain/straps to Hong Kong via Dubai under 31 Shipping Bills. There was a claim for DEPB benefit. Before effecting exports Select Impex Ltd. had obtained permission from Bombay Customs for examination and stuffing of the goods into the container at its factory premises. The first consignment after examination by Central Excise Officers were sealed in a steel trunk and brought to docks. In respect of the first lot of 27 watches since there was no examination report endorsed on the invoice by the Central Excise Officers the goods were examined at the docks by the Customs Officers. After examination 25 watches were allowed to be exported provisionally after detaining two watches, namely one wrist watch and one pocket watch for market enquiry to ascertain present market value. Second, third and fourth lot of watches were allowed to be exported without any examination by the Customs officers based on examination report endorsed on the reverse of the export invoices by the Central Excise officers. The last consignment of three Quartz Analog Watches sought to be exported under Shipping Bill dated 9-2-99 was detained on 10-2-99 by the DRI Officers. After detailed enquiry show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that gold alleged to have been purchased by the first respondent from Mangalore, Bangalore and Ahmedabad had as a matter of fact reached Mumbai. It is further contended that the Commissioner has wrongly placed the burden on the department to prove that the first respondent had purchased 1956 pocket watches for being exported after fitting them with gold chains. 5. The appellant would submit that on the question of valuation also the Commissioner has erred in entering a finding that the department had not adduced any evidence that identical or similar watches were sold at lower value in international market or in the local market. 6. Before we go into a discussion in detail regarding the several grounds taken in these appeals, we may refer to certain admitted facts in this case noted by the Commissioner in the order impugned - (1) Export of 1956 Quartz Analog watches (alleged to be pocket watches) attached with gold chains is not disputed. (2) One pocket watch detained as sample from the first consignment was examined by SIIB and its chain was found made of gold weighing 79.350 gms. (3) SIIB did not ascertain the weight of the gold strap of one w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comments of the DRI were called for, the reply was that all relevant facts had been given in the show cause notice itself. The learned Counsel for the respondent would contend that DRI being not a party to proceeding, the Commissioner could not have called for their comments. In any view of the matter we find from paragraph 17.3(v) of the order impugned that the Commissioner has not taken into consideration the additional evidence adduced by the noticees after the final hearing as they were only to support the materials which had already been produced before the adjudicating authority. Therefore, we do not find any reason to interfere with the impugned order on the ground that the order was vitiated by mala fides on the part of the appellant. 8. It is contended on behalf of the appellant that the Commissioner has erred in holding that the allegation of misdeclaration of either description of watches or the gold contained in the straps/chains is not established. According to the appellant in the light of statement of Shri Dhiraj Shah of Time Avenue denying having supplied any watches to noticee No. (1) the Commissioner should have held that the noticee No. (1) had failed to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents given by the officers after they were put under vigilance enquiry. There is nothing to show that the investigations conducted by DRI with Consulates of Indian Mission abroad in Dubai and Hong Kong had revealed that the goods imported as a matter of fact were pocket watches and not wrist watches. Therefore, the Commissioner is fully justified in relying on the fact that the consignee in Hong Kong had confirmed receipt of 1956 wrist watches and not pocket watches. In the light of the above discussion, we hold that there is no merit in the contention of the Revenue that the Commissioner has erred in his finding regarding allegation of misdeclaration of description of watches. 9. We will now proceed to consider the contention relating to allegation regarding the gold contained in the strap/chain. The allegation in the show cause notice is that the noticees (1) to (3) have not received any gold from the sources disclosed by them. According to the noticees substantial quantity of the gold was purchased from Corporation Bank, Bangalore/Mangalore and the balance quantity from Ahmedabad. The Commissioner has come to a conclusion that the allegation regarding non-receipt of gold in Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d content in the strap/chain made against the assessee is not established. 12. Now coming to the issue regarding valuation it is seen that except in the case of two sample watches detained in the first consignment and the three wrist watches under seizure in all other cases a uniform value per watch is adopted at Rs. 730/- on the basis of the single bill available in the records in respect of one pocket watch. Weight of the gold chain was assumed to be 15 gms. each and gold content was valued on that basis, noticees (1) to (3) contended that valuation is incorrect for more than one reason. Apart from the fact that it is wrongly assumed that all 1956 pieces were pocket watches and they were all identical with the same price of Rs. 730/- it was also assumed that the chains attached to such watches weighed 15 gms, each when as a matter of fact the gold chain attached to the pocket watch which was examined by SIIB was found weighing 79.350 gms. It was also contended that no relevance was given for charges incurred for converting the chains from running length into chains/strips at the factory and wastage involved in cutting. It was further contended that even in the case of three wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. We do not consider it necessary to discuss in detail the arguments put forward by both sides in view of certain admitted facts in the case. As mentioned in an earlier portion of this order, on examination of the first consignment SIIB found that the chain of a pocket watch weighed 79.350 gms. It is the case of the Revenue that out of 1957 pieces of watches exported 1956 pieces were pocket watches. Over-valuation is alleged on the basis that the chain of the pocket watches weighed only 15 gms. But the Revenue has failed to establish that the one pocket watch examined by SIIB and found to have golden chain of 79.350 gms. attached to it is an exception and all other pieces of pocket watches were attached to golden chain weighing 15 gms. each. Regarding the three wrist watches seized and the one taken as sample from the first consignment Revenue could not establish over-valuation. We, therefore, hold that the Commissioner was correct in his view that the Revenue has failed to prove the allegation of over-valuation against Noticees Nos. (1) to (3). 15. Since the charge of misdeclaration against Noticee Nos. (1) to (3) are found not sustainable, the charge of abetment against N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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