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TMI Blog2004 (3) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 - BOMBAY HIGH COURT] , and Boards instructions, it is to be held that Customs authorities should only examine the Export Goods and leave the eligibility to DEPB to DGFT authorities and that goods under DEPB Export cannot be held to be liable to confiscation u/s 113 of the Customs Act and or penalty u/s 114 of the Customs Act, 1962 for DEPB eligibility claim, or otherwise. In view of the findings, this appeal is to be allowed after setting aside the order. - HON'BLE S.S. SEKHON (T) AND KRISHNA KUMAR (J), MEMBERS For the Appellant : Anil Balani, Adv. For the Respondent : A. Saxena, D.R. Order S.S. Sekhon, Member (T) 1. Appellants are exporters. A consignment of ladies skirts (woven) were consigned to a buyer abroad. The officers of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntelligence, in fact, as the notice alleged. The statement of the appellant was supported by the statement of Murli Dialani who admitted to have supplied the goods at Rs 225/- per piece and there was no evidence of Murli having been shown a sample from the consignments impugned. The purchase price of Rs. 225/- and FOB and PMV were correct. Export proceeds have been received in full. (ii) Enquiries of PMV were considered at the back of the appellants and the persons whose opinion are relied upon were not produced for cross-examination and the adjudicator should not have applied his person opinion to arrive at the value. The rejection of the declaration in spite of being aware that full foreign exchange remittance has come should have been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the price of certain goods for the purpose of finding their PMV, the concerned persons in the market may be made available for cross-examination also cannot be accepted. In such cases cross-examination is warranted and the matter has to be decided primarily by applying common sense. These findings cannot be approved. If the adjudicator is relying upon the prices as reported by the investigating officers and mentioned in the notice, the denial of cross-examination of the shop keepers and persons from whom enquiries were made and or the investigating officers would be all to the very basis of the show cause notice issued in this case. Especially when he finds that the appellants brother a co-noticee, in these proceedings, who supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Promotion Copy of Shipping Bill to the Exporter. (b) The exporter after realising the export sale proceeds, will apply to the prescribed authority in the office of the Director General Foreign Trade, Ministry of Commerce (hereinafter refer to a DGFT) in the form prescribed in Appendix 11C of the Handbook of Procedures, along with prescribed documents, such as Export Promotion Copy of Shipping Bills, export realisation certificate. The applicant also indicates the product description and the rate of credit available to the said goods as per the rate prescribed by the DGFT in the DEPB Schedule. The DGFT issue Duty Entitlement Pass Book licence and a Pass Book after scrutiny of the application form in Appendix 11C. The DGFT grants the DEPB rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld in Para 5 as under : ............ Therefore we find that while the Customs cannot sit in judgment over any decision regarding quantum of DEPB to be credited in the passbook, yet in all fairness justice require that if the Customs find any variation between the description of the goods as declared on the shipping bill and as declared in terms of public notice issued by the Customs House for the same consignment they would be entitled to bring such discrepancy to the notice of the DGFT and await for further orders on the quantum of credit to be given under DEPB from DGFT. Similar view was taken by the Calcutta High Court in the case of Kanhaiya Exports v. Commissioner of Customs - 2001 (133) E.L.T. 280 with regard to verification of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 791(E), dated 30-12-1993 have been issued under the powers conferred by Section 19 of the Foreign Trade (Development and Regulation) Act, 1992 by the Central Government and not under the powers which would be exercised by the Central Government to issue an order under Section 3(2) of the Foreign Trade (Development and Regulations) Act, 1992, which would vide sub-section (3), would then deem then to be a prohibition under Section 11 of the Customs Act, 1962. Besides of Rules, 14(1) and 14(2) of Foreign Trade (Regulations) Rules, 1993 on a plain reading, would cover declaration for obtaining a licence and import any goods and DEPB's would not be covered by the word 'Licence' as defined in the Foreign Trade (Development and Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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