TaxTMI 
TaxTMI 
2010 (4) TMI 946
X X X X Extracts X X X X
X X X X Extracts X X X X
....m., Appeal No. C/22/09-Mum.; Application No. C/S/50/09-Mum., Appeal No. C/23/09-Mum.; Application No. C/S/51/09-Mum., Appeal No. C/24/09-Mum. These stay applications have been filed by M/s. Shree Deepak Exports and several others seeking waiver of pre-deposit and stay of recovery of penalties imposed on them vide the impugned order on a finding that M/s. Shree Deepak Exports had, during the period October, 1998 to January, 2000, over invoiced the consignments of readymade garments exported by it under several shipping bills in order to obtain undue drawback amounts. M/s. Shree Deepak Exports also seek waiver of pre-deposit of an amount of Rs. 69,02,713/- demanded from it as undue drawback granted to it. The Commissioner re-determined the F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o. C/S/51/09-Mum., Appeal No. C/24/09-Mum 2. These applications filed by M/s. Suresh Enterprises and several others seek waiver of pre-deposit and stay of recovery of the following dues adjudged against them. Sr. No. Applicants Name Penalty 1. M/s. Suresh Enterprises Rs. 50,00,000/- 2. Shri Suresh Jhunjhunwala Rs. 50,00,000/- 3. Shri Deepak Jhunjhunwala Rs. 50,00,000/- 4. Smt. Abha Jhunjhunwala Rs. 25,00,000/- 5. Shri Idris Ujjainwala Rs. 10,00,000/- 6. Shri Shivanth Gajanan Bhojane Rs. 5,00,000/- 7. Shivnath G. Bhojane & Sons Rs. 5,00,000/- The Commissioner denied claim for DEPB of Rs. 52,89,775/- against the export of ready-made garments of declared FOB value of Rs. 4,42,77,399/- under 28 Shipping Bills. In this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Shree Deepak Exports and M/s. Suresh Enterprises. It was observed that both the main applicants namely M/s. Suresh Enterprises (SE) and M/s. Shree Deepak Exports (SDE) had exported ready-made garments by mis-declaring the value under claim for DEPB/Duty Drawback. Documents relating to the export of goods were scrutinized. On detailed investigation by DRI, it appeared that the above applicants had indulged in massive fraud and had obtained undue duty drawback and DEPB credit. After due process of law the impugned orders came to be passed. Aggrieved from the same the applicants are before us. 5. Shri C. Harishankar, the learned Counsel for the applicants submitted that the allegations against the applicants were recorded in para 87 of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and submitted that the facts of that case were identical to the present cases. In that case the Tribunal rejected the finding of over invoicing of export goods as let export orders had been issued by department in case of all shipping bills involved. Tribunal also took into account the fact that the remittance of foreign exchange to the extent of the declared value had been received and there was no clinching evidence of hawala payments, as the persons to whom compensatory payments had been made in India had never been identified. The learned Counsel stated the decision of the Tribunal in the case of Tex-Age (supra) is applicable to the cases at hand. He further submitted that when the examination reports were available oral evidence to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons, stay applications may be decided. The learned DR submitted that the Commissioner had correctly relied on the statements of the co-noticees which clearly showed the fraud committed by the appellant exporters and the extent of mis-declaration of description and value by them. Records had been created to evidence payment of higher purchase prices; it was established that those suppliers never existed. He brought to our notice the judgment in one of the exporters own case in Suresh Jhunjhunwala v. Commissioner of Customs, reported in 2007 (220) E.L.T. 842 (Tri.-Mumbai) wherein this Tribunal in a case of identical facts had held that the goods were over valued and mis-declared. He further submitted that in view of the said judgment directio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce between the exporter and the examining/appraising officer. Moreover, in the case of M/s. Shree Deepak Exports at least 16 shipping bills, which are the subject matter in the instant appeal relating to readymade shirts, representative samples were drawn and forwarded to SIIB branch of Air Cargo Complex, as FOB value appeared to be on the higher side. As per the report of the SIIB Branch, the value of the shirts was reassessed as Rs. 300/320 per shirt. But in appeal, the Commissioner (Appeals) held that the value declared in the Shipping Bills was correct. The said order of the Commissioner (Appeals) was accepted by the Department. In the light of the same, prima facie, the actual market value as determined in the impugned order in respec....