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TMI Blog2004 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... were not entitled to DEPB under Serial No. 86 of the Product Code 83 of the DEPB Schedule. Since all that was required, in the case was for the Commissioner to have reported the matter to the DGFT authorities and not sit in judgments over the grant and or determine entitlement of DEPB which were not within the jurisdiction of the Customs to do so. The order of determination of the eligibility or otherwise of DEPB as made in this case cannot be upheld. The declaration in the Shipping Bills need not always be in technical details explaining the functions. It is not brought out in the order that the packing list was suppressed or kept away from the Customs Officers. In fact the declaration made on the Shipping Bill, as seen from Para 1 of the impugned order was 'Printed Circuit Board Double Sided (AGP Card TNT2/M84)'; which would indicate that the 'Card nature' with technical specification was indeed declared. The charge of misdeclaration therefore cannot be upheld. The finding of the Commissioner that Rule 14 of the Foreign Trade (Regulation) Rules, 1993 especially sub-rule (2) thereof read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull realisation of the amount, as per the declared values, has been received and evidence to that effect was shown to the adjudicator. The adjudicator however confirmed the charge of over invoicing ordered the limiting of DEPB to Rs. 3,28,900/- as against Rs. 12,25,088/- claimed. A penalty of Rs. 5 lakhs was imposed on the Exporters proprietor Shri Milan Shah, Rs. 2 lakhs on Shri Rajesh Poojari proprietor of M/s. S.R. Enterprises the supplier, Rs. 1 lakh on Ms. Sujata Poojari who is alleged to be the authorised signatory of M/s. S.R. Enterprises. Hence these appeals. 2. After hearing both sides and considering the issues and the material it is found:- (a) The shipping Bill was filed on 3rd November, 1998 whereas the Show Cause Notice was issued on 22nd November, 1999 which is beyond the period of 90 days stipulated by Circular No. 69/97-Customs, dated 8th December, 1997 as modified by Circular No. 79/98-Customs, dated 22nd October, 1998. The said circulars are binding on the department held in the case of J.G. Exports v. CC-1999 (105) E.L.T. 258. The Circular No. 23/99-Customs, dated 11 May, 1999 relied upon by the Commissioner and which empowers the Commissioner to extend the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared export FOB value has been received by the Appellants and the Bank Realisation Certificates have been duly submitted, therefore the declared FOB value is demonstrated proved by the Appellants to be the true sale consideration between the Appellants and the Foreign Buyers. The Supreme Court has in Paragraph 21 of the judgment in the case of Om Prakash Bhatia observed that the exporter in that case did not lead any evidence to show that the declared export value represented the true sale consideration. In the present case the Appellants have submitted evidence of realization of the entire declared export value which shows that the same was the true sale consideration. Therefore the ld. DR reliance on Om Bhatia case cannot help the Revenue. (iii) In the following cases, it is laid down that where evidence is led by exporter to show full realization of the export value and there is no evidence led by the department to prove money laundering, it cannot be said that there was over invoicing of the export value under Section 14(1): Shilpi Exports v. CC - 1996 (83) E.L.T. 302 - upheld by the Supreme Court in 2000 (115) E.L.T. A 219 S. Chandra Sekharan v. CC - 2001 (132) E.L.T. 751 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two earlier statements dated 6th April, 1999 and 30th June which were exculpatory. Therefore it is to be held that the present local market values as alleged found by the Adjudicator cannot be accepted. (iv) The ld. Advocate for the appellants have argued on the provision in Para 7.36A of the Handbook of Procedures on Exim Policy 1997-2002, questioned the jurisdiction of the Custom Authorities to determine the DEPB wherein they have held as follows : After hearing both sides and considering the material it is found - (a) The provisions regarding DEPB Scheme are contained in Paras 7.14 to 7.17 of Import-Export Policy, 1997-2002 (April, 2000 Edition). The procedure regarding applying for DEPB and obtaining credit are contained in Paras 7.38 to 7.53 of the Handbook of Procedures, Vol. 1. During the period in question, DEPB on post-export basis alone was to be granted. The provisions regarding grant of DEPB credit on pre-export basis have been deleted during the periods in question. Perusal of the relevant policy paras reveal that when the exporter, exports the goods under cover of DEPB Shipping Bills. At the time of export, the Customs Department will examine the goods vis-a-vis the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the DGFT. (d) The CEGAT in the case of M.K. Fisheries v. Commissioner of Customs - 2002 (150) E.L.T. 998 has held 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 documents. This decision of the Calcutta High Court has been confirmed by the Division Bench of High Court as reported in 2001 (133) E.L.T. 537. (e) In this view of the policy, procedure instructions and the law, in the matter of DEPB, we cannot uphold the decision arrived at by the Commissioner to have impugned the exports and come t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Customs Officers. In fact the declaration made on the Shipping Bill, as seen from Para 1 of the impugned order was 'Printed Circuit Board Double Sided (AGP Card TNT2/M84)'; which would indicate that the 'Card nature' with technical specification was indeed declared. The charge of misdeclaration therefore cannot be upheld. (g) The finding of the Commissioner that Rule 14 of the Foreign Trade (Regulation) Rules, 1993 especially sub-rule (2) thereof read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 the goods should be deemed to render the export goods, prohibited goods and therefore liable for confiscation under Section 113(d) and 113(i) of the Customs Act, 1962 on consideration is found to be not correct interpretation of law. Even if the alleged mis-declaration finding is to be upheld. It is found that Foreign Trade (Regulation) Rules, 1993 issued vide Ministry of Commerce Notification No. GBR 791(E), dated 30-12-1993 have been issued under the powers confirmed 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 Govt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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