2015 (4) TMI 1072 - AT - Customs

Appeal allowed, overvaluation rejected, reduced penalty suggested in tax dispute.

The majority order, comprising Member (Judicial) and Third Member, set aside the Commissioner's order, allowing the appeal and providing consequential ... DEPB benefit - Misdeclaration of value - Appellant exported Drop Forged Combination Pliers Chrome Plated with Heavy Red Transparent Sleeve under DEPB scheme but revenue after examination, doubts about the eligibility of goods for DEPB and allowed the export on provisional basis under DEPB. After clearance of the goods it appeared that the FOB as well as PMV of the goods has been inflated and department rejected the declared FOB price because the price at which the appellant purchased the goods from a proprietorship concern is much higher than the price at which the pliers from local artisans were purchased and therefore, restrict the DEPB benefit to 16% - Held that: as per the decision of the Tribunal in the case of Kanak Metal Industries, the exporter is not bound to fix the FOB value at prevailing market price and is free to sell the goods at profits. Thus, the FOB price need not be equal to the prevailing market price of the goods, so long as it conforms to the provisions of Section 14 of the Customs Act, 1962 and DEPB benefit is to be given with reference to the FOB value. So, when there is nothing wrong with the declared FOB value of the goods exported, the DEPB benefit can not be restricted to 16% of the PMV. Moreover, there is a built in the foreign trade policy to discourage the inflation of the FOB to claim the higher DEPB benefit. This mechanism is in the form of restriction in the policy that in the case where the DEPB benefit is available at the rate of 10% or more, the total DEPB benefit available to the exporter shall not exceed 50% of the PMV of the goods. Therefore, as the DEPB benefit claimed by the appellant is much less than 50% of the prevailing market value determined by the Commissioner, the DEPB benefit to the appellant can not be restricted to 16% of the PMV. - Decided in favour of appellant with consequential relief Issues Involved:1. Over-invoicing of exported goods.2. Determination of the correct value of goods for DEPB benefits.3. Validity and reliability of market inquiries and statements.4. Justification of penalties and fines imposed.Detailed Analysis:1. Over-invoicing of Exported Goods:The appellant filed a shipping bill for the export of 78,024 'Drop Forged Combination Pliers Chrome Plated with Heavy Red Transparent Sleeve' under the DEPB scheme, declaring a PMV of Rs. 80,94,094/- and FOB value of Rs. 73,58,267/-. Revenue suspected over-invoicing and conducted inquiries, revealing discrepancies between the declared prices and market prices.2. Determination of the Correct Value of Goods for DEPB Benefits:The adjudicating authority adopted the prices at which the pliers were supplied by local blacksmiths to M/s. Jindal Tools, adding costs for polishing, buffing, chrome plating, and PVC sleeves, and determined a lower PMV of Rs. 34,63,080/-. Consequently, the DEPB benefit was restricted to Rs. 5,54,093/-. The appellant contested this valuation, arguing that the goods were of superior quality, justifying the higher declared value.3. Validity and Reliability of Market Inquiries and Statements:The Commissioner relied on market inquiries from Jaipur and statements from local artisans, which indicated lower prices for pliers. However, the appellant argued that these inquiries did not pertain to identical goods. The statements of local artisans were also contested, with some denying having supplied goods to M/s. Jindal Tools and others stating they sold unpolished, unbuffed pliers at lower prices. The appellant produced invoices and payment records to support their declared values.4. Justification of Penalties and Fines Imposed:The Commissioner imposed a redemption fine of Rs. 8 lakhs and penalties totaling Rs. 83,58,267/- under Section 114 of the Customs Act, 1962. The appellant argued that the penalties were unjustified as the declared values were based on actual transactions and payments received from the foreign buyer.Separate Judgments:Majority Order (Member (Judicial) and Third Member):- The majority found no evidence to justify the rejection of the declared FOB value and PMV.- It was noted that the goods were found to be as per the declaration, and the full export proceeds were realized.- The market inquiries and statements from local artisans were not considered reliable as they did not pertain to identical goods.- The majority set aside the impugned order, allowing the appeal with consequential relief to the appellant.Dissenting Opinion (Member (Technical)):- The dissenting member upheld the findings of overvaluation and fabrication of records.- It was concluded that the appellant inflated the export prices to claim higher DEPB benefits.- The penalties were justified, but the penalty on the appellant was reduced to Rs. 25,00,000/-.Conclusion:The majority order set aside the Commissioner's order, allowing the appeal and providing consequential relief to the appellant. The dissenting opinion supported the findings of overvaluation and fabrication, but suggested a reduced penalty. The final decision favored the appellant, rejecting the allegations of over-invoicing and misdeclaration.