TaxTMI 
TaxTMI 
2011 (1) TMI 364
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....w. While consequences as above arose against the appellants, the proceedings initiated against 13 others for the cause of buying DEPB scrips in question from the appellant were dropped on the ground that there was no allegation in the show cause notice either directly or indirectly about involvement of these noticees in the commitment of offence by the present appellant. 2.1 Opposing the adjudication, learned Advocate appearing on behalf of the appellant submitted that DEPB scrips in question were earned by the Appellant against export of appropriate description good exported as was held by the DGFT in terms of their communication in F.No. 01/80/162/973/ AM-05/DES-1/3903, dated 6-12-04 stating that the DEPB Committee of the DGFT Meeting No. 16/05 held on 5-11-2004 as under (Ref : Page 123 of Appeal folder) : "The Committee considered the case as per details given in the Agenda. The Committee on perusal of the documents provided by the Customs as also the samples given thereof in consultation with the Technical authorities including those present in the meeting from DIPP and Min. of Steel confirmed that there is no doubt about the item in question being 'Draw Bars' and co....
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....e affixed on the rear portion of vehicle for coupling any load to be towed. It is used as towing device. The "draw bar"are specified at serial no. 265/61 of DEPB schedule and in Standard Input Output Norms at S.No. C-1017 of Foreign Trade Policy (in short FTP) and it reads as under :- Sr.No. 265/61 of DEPB Drawbars SION C-1017 of FTP Draw bars The word "draw bar"and "ball mount"has not been defined in DEPB Schedule. The DEPB schedule are neither based on HSN nor scientifically interpreted like customs tariff, drawback schedule, Central Excise tariff. The DEPB are allowed on the basis of entry specified in the DEPB schedule."                       [Emphasis supplied] 2.4 Drawing attention to para 68 of the adjudication order, Appellant's submission was that samples were drawn by Revenue Authority and those were sent to DGFT for clarification in terms of their letter No. C.No. VIII/Cus/CFS/ CONCOR/KE/02/2004/160....
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.... 2.8Learned Counsel further drew our attention to the clarification issued vide letter dated 29-9-2004 (available at page 109 of Appeal folder) by Institute for Auto parts Technology which is a UNDP/UNIDO Assisted with Punjab Government Projects. The communication issued by that Institute on 29-9-04 exhibits that samples tested by that Institute resulted with the conclusion that the goods were draw bars for cars and tractors respectively. It is also indicated by the Institute that similar design, parts with various sizes can be used as draw bars. Similarly reference to page No. 115 in the appeal folder exhibit the conclusion of study of Research and Development Centre for Bicycle and Sewing Machine - a UNDP/UNIDO Assisted Punjab Government project and show that drawing No. 50830 and 20005 fall in the category of drawbars. Both drawings were stamped and countersigned by authorised signatory of the Centre. 2.9 It was further submitted by the learned Advocate that when the co-noticees who were purchasers of DEPB scrips and user thereof succeeded before the adjudication authority finding no mala fide in respect of transfer of genuine DEPB scrips by the appellant, this appellan....
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....owing sale of draw bars in the course of export. According to him, the goods that has already been exported leaves no controversy to question the appellant on DEPB claim when DGFT has no question on the matter nor found fault with the appellants in respect of DEPB claim on goods exported. There is also no dispute by Revenue about the process of manufacture of goods and the nature and the description thereof till export. Since no samples were drawn at the time of export the adjudication is baseless. Post export adjudication without any contrary evidence is a futile exercise made to raise demand arbitrarily. 3.To buttress his claim learned Counsel relied on the following decisions : (1) PTC Industries Ltd. v. UOI [2010 (252) E.L.T. 42 (All.)]; (2) Blue Water Foods & Exports Pvt. Ltd. v. CC [2010 (251) E.L.T. 305 (T)]; and (3) Top Man Exports Ltd. v. CC [2007 (208) E.L.T. 353 (T)] 4.1 Per contra, contention of Revenues is that DPEB claim made by appellant was by misdeclaration of the description of the goods contravening terms of the Notification No. 34/97-Cus., dated 7-4-97. The goods exported....
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.... 6.1 There was no evidence on record to show that at any time Revenue has collected any sample of the goods exported by the appellants except the sample sent for opinion of DGFT relied upon by the Appellant. Neither before the export, nor in the course of export, nor after the export, goods of any description were collected from the control of the appellants for technical tests by Revenue to prove their contention that the goods were ball mounts but not draw-bars. Records also do not disclose as to whether Revenue has made any inquiry from the end of the importer about the nature and description of the goods exported. Reliance placed by the appellants on various examination reports and opinions of different institution made on the basis of drawings showing the goods were of description of draw-bars remained uncontroverted by Revenue without any technical examination done by them. So also there is technical opinion gathered by Revenue to prove their stand. 6.2 It was the contention of the appellant that the appellant was dealing with same goods for number of years and Revenue could not find any fault with them. Such an averment could not be controverted by the Revenu....