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TMI Blog2005 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... on material obtained, could be altered by DGFT the matter could be reported to them for that purpose. The order of the Commissioner of Customs in this regard cannot be upheld. Following that decision of the Tribunal, the confiscation penalty under Sections 113(d) 114 of the Customs Act, 1962 also not upheld. We are reinforced in our finding that Customs Authority havePolyfils no jurisdiction over the DEPB quantum eligibility to credit per se by the decision of the Mumbai High Court in the case of Pradeep Polyfils v. CC,[ 2004 (1) TMI 93 - BOMBAY HIGH COURT] . Following the same, the orders on DEPB as made cannot be upheld. In view following findings herein, the order are to be set aside appeal allowed. - SHRI S.S. SEKHON, MEMBER (T) AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products. Similarly, M/s. Mahavir Agency employed three (c) sub-job workers namely M/s. Fatsaria Industries, M/s. Preeti Engineers and M/s. Bharati Products. M/s. Shree Shiv Shakti Engineering works (d) reportedly employed M/s. Maltex Industrial as sub-job worker for moulding and M/s. Kshama Engineering for micro grinding. M/s. Narendra Industries, reportedly employed (e) M/s. Rohit Engineering works as sub-job worker for moulding and M/s. Kshama Engineering as sub-job worker for micro grinding. M/s. Vrundavan Exports, had reportedly maintained, that the nature of work required for fabricating these graphite guide and seal rings were of very precise type and that the rejection rate at the time of manufacturing was very high and hence for j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. From above it appeared that M/s. Vrundavan Exports, Ahmedabad have resorted to fraudulent act of creating documents like invoice etc. in name of fictitious firms. In process they have created a lot of fictitious firms and obtained bogus invoice without getting anything manufactured. This has been done so as to create documents which help them in substantiating their highly inflated value of graphite guide and seal ring and which, if every thing had gone well, would have helped them in reaping huge undue amount in form of duty credit under DEPB scheme. For sake of brevity all such shipping bills wherein, fraudulent act of inflation of value has been made are being tabulated below :- SR. NO. S/BILL NO. FOB VALUE Rs. Entitled duty credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mixed graphite products and were eligible for DEPB credit of only Rs. 5,652.50 while they have already availed credit Rs. 6,51,000/-. Thus excess credit of Rs. 6,45,347.50 is recoverable for them. It appears that by act of such fraudulent inflation of FOB value or by resorting to over-invoicing the provisions of Section 50(2) of the Customs Act, 1962 have been violated by the exporter. Further Rule 11 of the Foreign Trade (Regulations) Rules, 1973 requires that the value of the goods to be exported be declared correctly, which in this case has not been done and hence it appeared that consequently, the prohibitions imposed by Section 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 is attracted and the above mentioned goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 21-9-98, which has already been uitilised. (iv) DEPB benefits in respect of licence no. 0138406 dtd. 7-1-99 shall not be restricted to Rs. 66.50 per kg being 50% of present market value of goods exported. 1.3 Commissioner found the goods liable to confiscation under Section 113(d) as they were not available, imposed a fine of Rs. 25 lakhs on the exporting firm. Ordered forthwith refund with interest of the excess DEPB credit of Rs. 6,45,347.50 already availed/utilised under DEPB licence No. 54551, dtd. 21-9-98 against shipping bill No. 1000/34933, dtd. 20-6-98 and restricted the DEPB in respect of shipping bill no. 1000 233496, dtd. 19-11-98, 1000 242780, dtd. 3-12-98 1000 244081, dtd. 3-12-98 at Rs. 66.50 per kg imposed a penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as ordered, the reliance of the ld. Advocate on the decision of Kobian ECS India Pvt. Ltd. [2003 (157) E.L.T. 662 (Tribunal)] is well founded, wherein it has been held that decisions on eligibility for and jurisdiction of Customs Authority were not competent to sit over decision of DGFT to grant DEPB credit determined. The credits, if required, on material obtained, could be altered by DGFT the matter could be reported to them for that purpose. The order of the Commissioner of Customs in this regard cannot be upheld. Following that decision of the Tribunal, the confiscation penalty under Sections 113(d) 114 of the Customs Act, 1962 also not upheld. 2.3 We are reinforced in our finding that Customs Authority have no jurisdiction over t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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