TaxTMI 
TaxTMI 
2013 (4) TMI 626
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....1 (Container No.BLJU 4050374), which were exported to Afghanistan on the order of M/s.Right Choice Trading Ltd., 52A, TWR 2, Caribbean Coast, Hong Kong and M/s.Salman Tarabar Toor Transport Co. Ltd. The quantity, value and the DEPB incentive claimed by the petitioner on the said goods are as under: Container No. Shipping Bill No./Date Qty in yards FOB Value in Rs. DEPB amount in Rs. BLJU4050374 2302618/ 21.1.2011 54750.00 7324095.00 6,00,575.81 2302619/ 21.1.2011 90751.21 1,21,51,857.26 9,96,452.31 2302623/ 21.1.2011 82501.01 1,10,45,505.44 9,05,731.33 Total 228002.22 3,05,21,457.70 25,02,759.56 The value of fabric was declared as Rs.134.10 per yard for the export purpose and the present Indian Market value was declared as Rs.147.51 per yard. The said goods were allowed to be exported after proper verification/assessment by the customs authorities after verifying all the declaration/description of the goods. 2.1. Despite the fact that the assessment have been carried out and completed and let export order has been given and the goods left the territorial water of India, the investi....
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..... The value declared by the petitioner has been decreased by the respondent on the basis of the alleged investigation as under: Container No. BLJU4050374 (S/B no 2306218, 2306219, 2302623 all dated 21.1.2011 In this set of goods as against the value of the petitioner i.e. 134.10 per yard the department decreased the same to Rs.20 per yard (total 228002.22 yards) thereby decreasing the value of the same from 3,05,21,458, to Rs.45.60 lakhs. Correspondingly the DEPB (8.20%) claimed by the petitioner of Rs.25,02,759.56 has been sought to be decreased to Rs.373920/- Container No. BSIU9153055 (S/B no 2401710, 2401712, 2401737 all dated 02.02.2011 In this set of goods as against the value of the petitioner i.e. 135.15 per yard (total 228750 yards) thereby decreasing the value of the same from 3,08,81,775 to Rs.45.75 lakh. Correspondingly the DEPB (8.20%) claimed by the petitioner of Rs.25,32,305.57 has been decreased to Rs.375150/- 2.4. Though the petitioner has requested in its letters, dated 0303.2011, 04.03.2011, 23.02.2011 and 21.03.2011 for provisional release of goods, no response was received by them. Therefore, the action of t....
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....t that it recalled the goods, which had already crossed the territorial waters. If at all there was any problem in the said assessment then the correct steps would have been said to challenge the said assessment, instead the DRI has chosen to stop the consignments. Therefore, there is a statutory obligation on the part of the respondent to allow the goods to be released on a provisional basis for export, as these goods are freely exportable and are chargeable to duty and no prohibition is involved in the same. 2.7. The petitioner also undertakes not to avail any incentive against the goods in question pending adjudication proceedings and the petitioner is filing the present petition in order to save the detention and demurrage charges and if the goods are not allowed to be released on provisional basis for export, the petitioner may lose the order and it would be a complete loss not only to the petitioner but also to the Government as any export from India brings the valuable foreign exchange into the Country and the petitioner is ready to furnish necessary bank guarantee of 20% of the disputed DEPB claim and bond for the whole value of the goods for the purpose of releas....
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.... the value determined by the officials for the polyester fabrics after physical examination and market study is Rs.45,60,000/- and Rs.45,75,000/- respectively under Rule 6 of the Rules, which was taken as the true transaction value for the purpose of assessment. 3.2. While that being so, the petitioner now attempted to commit fraud by overvaluing the export goods, namely, polyester fabrics with a view to avail undue benefit under DEPB scheme and the petitioner also requested in reply to the show cause notice to them vide letter, dated 24.08.2011 for the release of the goods for the purpose of domestic use without any export incentives. On the one hand, the petitioner requested for the purpose of release of the domestic use without any export incentives. On the other hand, the petitioner is before this Court for the release of the impugned goods for the purpose of export stating that it would bring valuable foreign exchange into the country. It is not the case of normal export but one of claiming undue DEPB benefit by fraudulently overvaluing the export goods. It is further contended in the counter affidavit that the petitioner has appeared before the adjudicating autho....
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....ld contend that the alleged difference of the incentive claimed by the petitioner, even if the allegations is taken to be true, the petitioner has offered to furnish the sureties in the form of bond for the value of the goods and furnish bank guarantee of 30% of the alleged difference in the excess DEPB benefit as claimed by the petitioner in terms of the order passed by the Supreme Court in the case of Commissioner vs. Navasakthi Inds. Private Ltd., [2011 (269) ELTA 146 (SC)] in appeal against the judgment of Division Bench of Delhi High Court in Navasakthi Inds. Private Ltd., vs. Commissioner reported in 2011 (267) ELT 483 (Del). In support of his contention, he has also relied on a decision of M/s.Austin Engineering Company Ltd., vs. Commissioner of Customs reported in 2010(1) MLJ 1273. 5. Per Contra, the learned counsel for the respondent would contend that the goods imported found to be of inferior quality. The petitioner had overvalued the goods with an intention to avail undue benefit, which otherwise not available to the extent claimed by the petitioner. He would further contend that at the time of investigation by the revenue individuals, the petitioner was unable to fu....
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....or completion of such test or enquiry, be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed." ....... Section 14:"Valuation of goods:-(1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf:...." Section 110A - Provisional release of goods, documents and things seized pending adjudication.- any goods, documents or things seized under Section 100, may, pending the order of the adjudicating officer, be released t....
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....personal hearing was given to the petitioner on 01.12.2011. At the time of personal hearing, the petitioner has informed to the adjudicating authority that they will produce the past one year records of the export and realization of the BRC within a week. But the question is whether the BRC bills was produced or not. Though it is the stand of the respondent that it was not produced, it is the stand of the petitioner that the BRC bill has already been submitted and a proof of the same is also enclosed in the typed set of papers in its communication dated 05.12.2011. If it is so, it is for the respondent to proceed further in adjudicating the matter and give a final conclusion for provisional release on perusal of the every documents and analysing the every issue and it is for the adjudicating authority to conclude the proceedings by taking into account the BRC, which is a basic requirement, as they demanded in their personal hearing. The document, which is said to be produced immediately on 05.12.2011, by the petitioner in its letter of communication, dated 05.12.2011 bringing to the attention of the authorities concerned, as per the hearing by the adjudicating authority on....