2022 (7) TMI 1587 - AT - Customs

Commissioner's joint market verification with exporter upheld over DRI's separate enquiries for DEPB scheme valuation dispute

Commissioner of Customs (Preventive), Kolkata Versus M/s Jai Vikshu Niketan Private Limited

CESTAT Kolkata dismissed revenue's appeal regarding overvaluation of export consignments to Bangladesh for higher DEPB scheme benefits. The Commissioner ... Overvaluation of the export consignments to Bangladesh for availing higher benefit of DEPB scheme - Rejection of declared value u/r 8 of Customs Valuation (Determination of value of export goods) Rules, 2007 - confiscation of the export consignments u/s 113(d) & (i) of the C.A. 1962 - imposition of penalty u/s 114 & 114AA of the said Act - HELD THAT:- From the impugned order it is evident that the Commissioner has determined the value of impugned export consignments on the basis of the verification jointly undertaken jointly by the members of the market verification committee and Mr. Nathmal Jajodia, Director of M/s. Jai Vikshu Niketan and Sri Sandeep Jati, authorized representative of M/s. A.S, Traders. It is also noted by the Commissioner for the joint verification of the market price of the impugned goods, he had invited the conversant officers of DRI. Commissioner also refers to the communication made by the ADG DRI, refusing to be the part of such joint market verification. It is not even the case of revenue that these enquiries were conducted fraudulently. During the adjudicating proceedings commissioner has duly ordered for such market verification on the basis of the same sample that were drawn from the export consignment at the time of seizure. On the examination of the same samples and verification undertaken Commissioner has re-determined the market value of the export consignments and concluded that the value as declared by the exporters was genuine. Revenue in their appeal have sought to place reliance on the market enquiries that were conducted by the DRI without associating the exporter with the same. It is basic law of evidence that every evidence that is to be adduced in a proceedings against the person should be tested for it veracity and authenticity by the person adjudging the issue. In this case Commissioner has got the market verification done and have rejected the market enquiries undertaken by the DRI. The approach of the Commissioner cannot be faulted. Once Commissioner has concluded that the value as declared by the respondent to the Custom Authorities in India is genuine, other charges made against the exporter do not survive. Even if there are certain irregularities found in the export vis a vis the legal requirements in the destination country, (Bangladesh), the same could not be made a ground for proving the misdeclaration of value. For the irregularities committed vis a vis the legal requirements in Bangladesh, it is for the Bangladesh Authorities to proceed against the importer/ exporter of the goods. Neither show cause notice nor the appeal conclusively makes an assertion to that effect. Conclusion - The Commissioner's decision to reject the DRI's market verification upheld, due to the lack of participation by the exporter, emphasizing the need for evidence to be tested for authenticity. The fraudulent acts involving document forgery intended for Bangladeshi authorities do not constitute a violation under the Indian Customs Act, as they are not presented to Indian Customs. The appeal filed by the revenue is dismissed. ISSUES PRESENTED and CONSIDEREDThe Tribunal considered several core legal questions in this judgment:1. Whether the export consignments were overvalued to avail undue benefits under the Duty Entitlement Passbook (DEPB) scheme.2. Whether the mode of payment for the exports to Bangladesh complied with the applicable legal requirements, specifically concerning the use of Letters of Credit versus Documents Against Acceptance (DA).3. Whether the fraudulent acts, including document forgery and manipulation, by the exporter and associated parties facilitated the evasion of customs duties in Bangladesh and constituted a violation under Indian law.ISSUE-WISE DETAILED ANALYSIS1. Overvaluation of Export Goods- Relevant Legal Framework and Precedents: The Customs Valuation (Determination of Value of Export Goods) Rules, 2007, and relevant case law emphasize the need for accurate valuation of goods to prevent undue benefits under schemes like DEPB.- Court's Interpretation and Reasoning: The Tribunal considered the market verification conducted by the Directorate of Revenue Intelligence (DRI) and a subsequent verification ordered by the Commissioner of Customs. The Tribunal noted that the initial DRI verification was conducted without the presence of the exporter, which undermined its reliability.- Key Evidence and Findings: The Commissioner conducted a fresh market verification with the participation of the exporter, which showed that the market prices were only marginally lower than the declared Free on Board (FOB) values. The Tribunal found this verification more credible.- Application of Law to Facts: The Tribunal applied principles from previous judgments, emphasizing that evidence must be tested for veracity. The Tribunal found that the DRI's market verification, conducted without the exporter's involvement, could not solely determine the goods' value.- Treatment of Competing Arguments: The Tribunal rejected the revenue's reliance on the DRI's verification and upheld the Commissioner's findings based on the joint market verification.- Conclusions: The Tribunal concluded that the charge of overvaluation was not substantiated, as the declared values were consistent with the market prices established during the joint verification.2. Mode of Payment- Relevant Legal Framework and Precedents: The Foreign Exchange Management (Manner of Receipt and Payment) Regulations, 2000, and guidelines from the Reserve Bank of India (RBI) govern the acceptable modes of payment for exports.- Court's Interpretation and Reasoning: The Tribunal noted that the RBI guidelines allow for exports on a DA basis, and there was no specific Indian legal requirement mandating the use of Letters of Credit for exports to Bangladesh.- Key Evidence and Findings: The Tribunal considered the exporter's argument that DA is a common payment method and that any issues with Bangladesh's import policy should be addressed by Bangladeshi authorities.- Application of Law to Facts: The Tribunal found that the mode of payment did not violate Indian law, as the RBI guidelines did not restrict DA payments.- Treatment of Competing Arguments: The Tribunal dismissed the revenue's argument that the DA payment method was impermissible, noting that the legal requirements of Bangladesh were not applicable under Indian law.- Conclusions: The Tribunal concluded that the mode of payment did not constitute a violation under Indian law.3. Fraudulent Acts and Document Forgery- Relevant Legal Framework and Precedents: The Customs Act, 1962, addresses the submission of false documents to customs authorities.- Court's Interpretation and Reasoning: The Tribunal noted that the alleged forged documents were not presented to Indian Customs but were intended for Bangladeshi authorities, which did not constitute a violation under Indian law.- Key Evidence and Findings: The Tribunal considered the evidence of document forgery but found that the acts were not actionable under the Customs Act since they were not submitted to Indian Customs.- Application of Law to Facts: The Tribunal applied the principle that actions not covered by Indian law cannot be penalized under it, even if they involve fraudulent intent.- Treatment of Competing Arguments: The Tribunal acknowledged the fraudulent intent but emphasized that the acts were not punishable under the Customs Act.- Conclusions: The Tribunal concluded that the fraudulent acts did not constitute a violation of Indian law, as they were not directed at Indian Customs.SIGNIFICANT HOLDINGS- The Tribunal upheld the Commissioner's decision to reject the DRI's market verification due to the lack of participation by the exporter, emphasizing the need for evidence to be tested for authenticity.- The Tribunal established that the mode of payment, whether DA or Letter of Credit, did not violate Indian law, as the RBI guidelines do not mandate a specific method for exports to Bangladesh.- The Tribunal held that fraudulent acts involving document forgery intended for Bangladeshi authorities did not constitute a violation under the Indian Customs Act, as they were not presented to Indian Customs.- The appeal filed by the revenue was dismissed, affirming the Commissioner's decision to drop the charges against the exporter.