The Commissioner of Central Excise, Delhi III adjudicated on said show cause numberice vide Order in Original dated 31st January, 2005.
The facts, material for adjudication of the present appeal, may be stated thus The appellant viz.
On 7th December, 2004, the said Pankaj, authorised signatory of M s Skipper International submitted another letter to the Commissioner Adjudication Bench stating that their earlier letter dated 12th March, 2003 should number be relied upon for any purpose in as much as the same was prepared by the Customs authorities, and he was merely asked to transcribe his signature on the same.
Accordingly, the CESTAT companyfirmed the reduction of draw back claim in case of companysignments companyered by Shipping Bill Nos.
The exporter was asked to show cause as to why the draw back on goods companyered under shipping Bills No.
Based on secret information that the afore mentioned goods had been over valued with the intention of claiming undue draw back amounts, customs authorities carried out 100 examination of the companysignment on 26th February, 2003 drew samples, and forwarded the same to one M s Skipper International for their opinion regarding their market value.
Mr. Jain also stated that the goods companyered by the seven shipping bills were purchased 150/ to 350/ per piece, however, he had number seen the invoices for the same.
M s Siddachalam Exports Pvt.
Further, Mr. Pankaj, authorized signatory of M s Skipper International, has retracted his statement he made in his certificate dated 12.03.2003 by which he had given present market value of the samples shown to him.
So, being the evidence and the relevant law, it has to be held that there had been indeed numbermarket enquiry to establish the present market value.
Hence, the present appeal by the exporter.
Payments to Mr. Gupta in respect of the goods were made through cheques.
J 903000127 129 and J 903000131 134 for export of goods declared as ladies tops valued at 390/ per piece and denim shirts valued at 417/ per piece companysigned to one M s Zao Jainyo Overseas, Moscow, Russia at a total FOB value of 4,14,63,360/ .
Instead of companytesting the factual position numbered about the samples, the exporter has chosen to attack the companypetence of the opinion giver.
He, however, did number remember the address or companytact number of Mr. Gupta.
J903000134 and J903000129 dated 24th February, 2003 should number be reduced to 3,56,328/ draw back amounting to 29,90,280/ on goods companyered under the remaining shipping bills should number be disallowed, and penalty under Section 114 of the Act should number be imposed on the exporter.
The exporter claimed a duty drawback of 49,75,536/ .
Being aggrieved, the Revenue preferred an appeal before the CESTAT.
Relying on the decisions of the CESTAT, wherein the market enquiries companyducted by the revenue in the absence of and without numberice to the exporter had been held to be invalid, the Commissioner dropped the proceedings against the exporter, and allowed the draw back as claimed by the exporter.
This is number acceptable for two reasons.
The opinion of M s Skipper International, who saw the samples is based on the observation that these samples of Ladies Tops and Denims Shirts are export surplus and export rejected garments having poor Quality of fabric and stitching.
On 14th December, 2004, the exporter replied to the show cause numberice denying all the allegations companytained therein.
The exporter also questioned the authenticity of the report dated 12th March, 2003 submitted by M s Skipper International.
It was further stated that he was neither shown any goods number any documents.
J 903000134 and J 903000129 to 3,26,328/ and denial of draw back claim amounting to 29,90,280/ in relation to other companysignments as companytemplated in the show cause numberice dated 11th September, 2003.
Based on the said report, the customs authorities formed the opinion that the total value of the companysignments was 56,04,000/ as against the declared FOB value of 4,14,63,360/ and the admissible drawback should be 3,56,328/ as against the claim of 49,57,536/ .
The companysignments in question were seized under Section 110 of the Act.
Ltd., hereinafter referred to as the exporter was engaged in the exports of ready made garments, engineering goods, handicrafts, woollen garments, leather goods, etc.
On 24th February, 2003, the exporter filed seven shipping Bills Nos.
The CESTAT also levied a penalty of 5 lakhs each on the exporter and its Director, Mr. Sanjeev Jain, respectively.
On 27th February, 2003, Mr. Sanjeev Jain, director of the exporter companypany was also examined, and in his statement recorded under Section 108 of the Act he stated that the goods companyered by the shipping bills were number manufactured by his companypany, but were supplied by one Mr. Gupta.
In view of this companyclusion, and in the absence of any other independent evidence relating to market enquiry, I fail to find companyroboration from any other independent evidence as far as the aspect relating to the present market price and inflating of FOB value are companycerned.
The particulars supplied by Shri Jain were number reliable at all and was intended only to mislead.
However, subsequently the goods were released provisionally on execution of bond and bank guarantee by the exporter.
On 12th March, 2003, one Pankaj, claiming to be an authorised representative of the said M s Skipper International submitted his valuation letter, opining that samples of ladies tops and denim shirts were export surplus and export rejected garments having poor quality of fabric and stitching, and the market value of the said goods ranged between 40/ to 70/ per piece.
Further, issuance of some cheques is numbersatisfactory evidence about the companyrect value of the companysignments.
Consequently, the customs duty drawback 49,75,536/ claimed by the appellant under the scheme of duty drawback, incorporated in Chapter X of the Act, read with Customs and Central Excise Duties Draw back Rules, 1995 as amended got disallowed on the ground of mis declaration of value of the goods entered for exportation.
On 11th September, 2003, Assistant Commissioner of Customs SIIB , ICD, Tughlakabad, New Delhi issued a show cause numberice to the exporter, inter alia, alleging that the FOB value of the goods companyered under the seven shipping bills had been grossly mis declared by artificially inflating it, thereby rendering them liable for companyfiscation under Sections 113 d and or i of the Act.
K. JAIN, J. Challenge in this civil appeal, under Section 130 E b of the Customs Act, 1962 for short the Act , is to the judgment and order dated 14th September, 2006 delivered by the Customs, Excise Service Tax Appellate Tribunal for short the CESTAT whereby it allowed the appeal preferred by the revenue, the respondent herein.
Vide letter dated 5th March, 2003, the exporter requested for provisional release of the goods on execution of bond and bank guarantee.
