TaxTMI 
TaxTMI 
2009 (4) TMI 707
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.... Hyd-II 02/2007 Rs. 24,02,053/- Penalty 3 C/St/253/07 C/628/07 Gagan Goyal, Director C.C.E, Hyd-II 02/2007 Rs. 24,02,053/- Penalty 4 C/St/260/07 C/658/07 Diamond Mink Blankets Ltd. C.C.E, Hyd-II 02/2007 Rs. 1,90,00,989/-Duty Rs. 1,90,00,989/-Penalty 5 C/St/261/07 C/659/07 Gagan Goyal C.C.E, Hyd-II 02/2007 Rs. 19,00,099/- Penalty 6 C/St/262/07 C/660/07 HL Goyal C.C.E, Hyd-II 02/2007 Rs. 19,00,099/- Penalty 7 C/St/256/08 C/635/08 Goyal Exports Ltd. C.C.E, Hyd-II 02/2007 Rs. 85,40,476/- Duty Rs. 85,40,476/- Penalty 8 C/St/257/08 C/636/08 Gagan Goyal C.C.E, Hyd-II 02/2007 Rs. 8,54,047/- Penalty 9 C/St/258/08 C/637/08 Hiralal Goyal C.C.E, Hyd-II 02/2007 ' Rs. 8,54,047/- Penalty 10 C/COD/446/07 C/St/327/07 C/786/07 S. Chandrasekaran C.C.E, Hyd-II 02/2007 Rs 85,405/- Penalty 11 C/COD/03/08 C/St/01/08 C/02/08 S. Chandrasekaran C.C.E, Hyd-II 02/2007 Rs. 1,90,010/-Penalty 12 C/COD/19/08 C/St/10/08 C/24/08 S. Chandrasekaran C.C.E, Hyd-II 02/2007 Rs. 2,40,205/- Penalty 3. We heard ....
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....ts. Shri S. Chandrasekaran, the Chartered Engineer was supposed to have valued the goods and given a certificate regarding their value. The Directorate of Revenue Intelligence carried out investigations into the exports and on the basis of the evidence gathered, it was concluded that the appellants had over-valued the goods exported for claiming undue DEPB benefits. The investigations were carried out at the destination port, namely Dubai. It was found that the value declared at the port of Import was much less than the value declared in India in the Shipping Bill at the time of exports. 7. The goods were originally exported to M/s. Mikura Impex, Hong Kong, but actually received by M/s. Strident International, UAE. According to the investigation, Shri H.L Goyal and Gagan Goyal along with their overseas buyers have entered into a conspiracy to commit an export fraud and to defraud the Government by availing undue DEPB credits. The Bank Realization Certificate (BRC) was issued on the basis of CDF (Currency Declaration Form). It appeared that there were no connection between the exports and their realization. Shri S. Chandrasekaran, Proprietor of M/s. Servel Associates issued ....
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.... the said Inspection Report, the Inspector of Customs (CFS), Hyderabad supervised the stuffing in the container and sealed the said container with Customs OTL seal. The period involved in these exports is from 07-01-2000 to 31-03-2000. In all, there were 49 consignments. The 49 Shipping Bills were finally assessed, 9 Shipping Bills were provisionally assessed. The export proceeds had been completely realized and the Appellant Company's Bankers, viz., Centurion Bank, Ludhiana, have issued Bank Realization Certificates (BRCs) covering the exports made under the said 49 Shipping Bills. On the basis of the above, the appellants filed applications with JDGFT, Hyderabad for the issue of eligible DEPB Credits. Based on the said applications, the JDGFT, Hyderabad issued 16 DEPB Credits against the 49 Shipping Bills. The said 16 DEPB Credits were transferable DEPB Credits on post export basis, and issued in terms of para 7.43 of the Handbook of Procedures. On receipt of the transferable DEPB Credits, the appellants sold the DEPB Credits in the open market, since the same were issued on Post Export basis and are freely transferable. 8.2 On 12-1-2000, the DRI, Hyderabad, informed the ....
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.... Currency. Further, he stated that the JDGFT, Hyderabad sought a clarification from the Assistant Commissioner of Customs, Hyderabad (Page No. 966, Vol. 4) whether there was any over invoicing in respect of exports. The Customs Authorities informed that the procedure for ascertaining and verifying the claims regarding the value were also taken into consideration, including market enquiry at the time of assessments. 8.6 The Licensing Authorities, have not initiated any proceedings against the appellant company in respect of the impugned exports. 8.7 The documents said to have been obtained from Dubai have not been attested by the Customs Authorities of Dubai as prescribed in the Evidence Act. Apart from this, the Bill of Lading shows the name of the consignee shows as M/s. Strident International Trading, Sharjah, and UAE. The Second consignee is shown as Mikura impex, Hong Kong. Further, the Bill of Lading shows the Invoice Numbers under which the impugned goods were exported. A verification of the Bill of Entry cited and filed before Dubai Customs shows that the person who applied for clearance is Thomsun Merchantile Marine LL, Dubai. Further, the invoice attached t....
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.... Cargo, Hyderabad and S.S. Wasim, Superintendent, Air Cargo, Hyderabad, have admitted that they have not seen the said Purchase Invoices for such large amounts while passing the Shipping Bills. They also stated that the said invoices were never presented by the appellants. Further, they stated that if any documents are produced by an exporter, they would bear the Custom's Seal thereon. Very Surprisingly, all these so called Purchase Invoices were found only in the Shipping Bill files of the appellant at the Air Cargo Complex, Hyderabad, whereas the appellant had also exported a number of consignments of the impugned goods at the ICD/CFS, Hyderabad, but such documents were not found. The appellant, therefore, submits that the Investigating Agency has not hesitated to plant fabricated invoices to implicate them. In the Cross-examination record of Rajeev Kumar Agarwal, Deputy Commissioner of Customs, ICD, Hyderabad, wherein he stated that the normal procedure for valuation of export goods was followed in respect of shipping bills filed by the three Goyal Companies. 8.12 The Appropriate Authority for modifying the DEPB benefit is only JDGFT under the Foreign trade (Development ....
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....ocate stated that no reliance can be placed on documents received from a foreign country unless they are duly attested by the Authority concerned. Reliance was placed on the decision of the Apex Court in the case of Collector of Customs, Bombay v. East Punjab Traders - 1997 (89) E.L.T. 11 (S.C.). 9. Shri K.S. Ravi Shankar, learned advocate appeared on behalf of the following appellants : (a) M/s. Goyal Exports C/635/2007 (b) Shri Hiralal Goyal C/636/2007 (c) Shri Gagan Goyal, C/637/2007 9.1 He urged that action has been taken against his clients based on the investigations in respect of the exports made by Goyal Impex. He relied on the Supreme Court decision in the case of ASCU Arch Timber Protection Ltd. v. CCE, - 2004 (167) E.L.T. 22 (S.C.) wherein the Apex Court held that the lower authorities used materials which pertained to one party to arrive at a finding against another party and this could not have been done. It was held that passing a common order disposing three appeals without separately dealing with the facts of each and every case was not proper. He also relied on the deci....
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....L.T. 998 (T-Chennai) vi. TTK Prestige Ltd. v. CC, Bangalore - 2005 (188) E.L.T. 385 (T-Bang.) vii. Kobian ECS India Pvt. Ltd. v. CC - 2003 (157) E.L.T. 662 (T-Mum.) viii. Mercantile India v. CC - 2007 (214) E.L.T. 540 (T-Chennai) ix. D.D. Gandhi v. CC - 2007 (214) E.L.T. 263 (T-Mum.) x. Top Man Exports Ltd. v. CC - 2007 (208) E.L.T. 353 (T-Mum.) xi. Kanhaiya Exports (P) Ltd. v. CC - 2006 (204) E.L.T. 295 (T-Kol.) xii. Pradip Polyfils Pvt. Ltd. v. UOI - 2004 (173) E.L.T. 3 (Bom.) xiii. Economic Traders (Guj.) Ltd. v. UOI - 2006 (130) ECR 418 (Guj.) xiv. CC v. Vishal Export Overseas Ltd. - 2007 (209) E.L.T. 331 (S.C.) xv. Abishek Export v. CC - 2006 (201) E.L.T. 56 (T-Bang.) xvi. Rioben International v. CC. - 2006 (198) E.L.T. 55 (T-Bang.) xvii. Advance Exports v. CC - 2007 (218) E.L.T. 39 (T-Ahmd.) xviii. Guru Nanak Exports v. CC - 2007 (215) E.L.T. 277 (T-Del.) 12. The FOB value declared by the appellants has been rejected without giving any reaso....
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....ad commenced inquiry into the correctness of DEPB issued to appellant, but eventually closed the matter based on the correspondence with appellant. Hence, respondent cannot determine the correctness of DEPB issued to appellant. (h) Basis for re-determination of value is one Bill of Entry filed in respect of a consignment in Dubai customs. Under Section 14, only export price in India can be adopted. Though Dubai customs Bill of Entry gives bill of lading number, which in turn gives shipping bill number and appellant's invoice number, investigators did not correlate the documents, before re-determining the value on that basis. 15. The appellant Shri Chandrashekar has filed his appeals beyond the statutory period. He has stated that he was involved in an accident, which prevented him from filing the appeal in time. Therefore, we condone the delay. The COD application is allowed. The delay in filing the appeals are as follows : C/02/2008 delay is 73 days C/24/2008 delay is 90 days C/786/2007 delay is 54 days 16. Shri Venugopal, the learned advocate appeared on behalf of Shri Chandrashekar. He had submitted the following points : 16.1&ems....
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....ue DEPB benefits. She prayed for putting the appellants to terms. 18. We have gone through the records of the case carefully. The show cause notices have been issued for the alleged overvaluation of the goods exported by the appellants in order to gain huge DEPB credit. The appellants have raised several legal issues with regard to the jurisdiction of the Customs authorities and the various procedural lacunae in conducting the investigations. They have also tried to show that they had followed the prescribed procedure in exporting the goods and claiming DEPB credit. It has also been stated that the Departmental Officers have examined the goods and accepted the declaration with regard to the value of the goods. The appellants' contention is that in respect of the goods exported, the foreign exchange has been realized and therefore, there cannot be any overvaluation. Investigations have revealed that the foreign exchange realized do not appear to relate to the goods exported. We reproduce the following observations of the Commissioner in the impugned order. "17.1 I have considered the defence put up by the Noticees on these allegations. The allegation is proved by the....