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2019 (2) TMI 1506
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....the 2nd Appeal i.e. of P.D. Impex, also two bills were filed by the Appellant for export of fabric, made out of Spun yard and the export was at COTE D'IVOIRE under EPCG & DEBP Schemes. The value of the consignment was declared as Rs. 32,54,697.50(FOB) and Rs. 90,82,189.50 (FOB) respectively @ 1.05 EURO per yard (C&F). Net Wt. of the consignments were 3697.50 kgs. & 10222.50 kgs. respectively. The Appellants in both the Appeals have produced their respective Sales Contract signed by both the parties for these Shipping bills and submitted that the FOB value was declared as per the sales contract between the Appellants and the overseas Parties. Revenue entertained a view that the goods appeared to be over-invoiced. Therefore three samples were drawn out in both the Appeals, in the presence of CHA, which were sealed and the shipment was allowed provisionally on 13.1.2010 after taking an undertaking dt.11.01.2010. Local market survey was conducted by the examining officer of customs alongwith CHA and his staff on 21.1.2010. Although goods of the same colour & texture were not available in the local market, however according to the department similar quality to the one being exported was....
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.... goods were earlier exported by the Appellants at prices comparable with prices declared in the impugned shipping bills, but the same was not relied upon by the authorities since according to them in absence of availability of any authentic samples of the goods exported earlier or any other evidence which could establish their comparability with the impugned goods, their export values cannot be a basis for valuation of the impugned exports. According to ld. counsel the value of the Appellants goods was not comparable with the goods exported by M/s. Provogue India Ltd. And M/s. Sadguru International due to difference in their kind and quality. He also submitted that in the Circular of Ministry of Finance bearing No. 37/1999-CUS dated 24.06.1999, it is clearly mentioned that the DEPB shall not exceed 50% of PMV of the goods, whereas in appellant's case they have claimed 1/3rd of the DEPB available, going by the market value of the goods, therefore DEPB credit should not have been reduced by the authorities below. The ld. Authorised Representative for the Revenue on the other hand re-iterated the findings recorded in the impugned order and prayed for dismissal of the Appeal. 5. We ....
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.... Subject to the provisions of rule 3, where the value of the export goods cannot be determined under the provisions of rules 4 and 5, the value shall be determined using reasonable means consistent with the principles and general provisions of these rules provided that local market price of the export goods may not be the only basis for determining the value of export goods. 7. Declaration by the exporter.- The exporter shall furnish a declaration relating to the value of export goods in the manner specified in this behalf. 8. Rejection of declared value.- (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any export goods, he may ask the exporter of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such exporter, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, the transaction value shall be deemed to have not been determined in accordance with sub-rule (1) of rule 3. 2) At the request of an exporter, the proper officer shall intimate the exporter ....
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....he provisions of Rules 4 and 5, the value shall be determined using reasonable means consistent with the principles and general provisions of these rules provided that local market price of the export goods may not be the only basis for determining the value of export goods. Explanation (1)(i) to Rule 8 ibid also makes it clear that where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 6. 6. In the instant matter, since the declared value appeared to the department to be on higher side, therefore market enquiry was conducted by Revenue which puts price of similar fabrics at about 0.45 EURO per yards whereas as per Revenue similar export consignments have fabrics valued at around 0.30 EURO per yards. We find that in this matter the Revenue straight away jumped to Rule 6 ibid without firstly complying with Rule 4 or 5 ibid. The said Rule i.e. Rule 6 specifically mentions that 'if the value of exported goods cannot be determined under the provisions of Rules 4 and 5, only then Rule 6 will come into play. This Tribunal also in the matter of R. Krishan & Co. vs. CC (Export), Nhava Sheva; 2016(331) ELT 91 (Tri. Mum....
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....tal aspects, when he rejected the impugned transaction value based on the valuation produced by the department relating to the export made by M/s Provogue India Ltd. We are not able to understand when the department can compare the goods of the Appellant with the goods exported by M/s. Provogue India Ltd. or M/s. Satguru International merely on the basis of their export document, then they could not have rejected the value of the similar goods exported earlier by the Appellant to the same company, which was accepted by the department at that time of export. The said export document produced by the Appellant was rejected by department because of absence of availability of any authentic sample of the goods exported earlier. The country to which the comparable goods of M/s. Provogue India Ltd. or M/s. Satguru International were exported was also different. The department did not produce the expert report etc. to establish that the export values relied upon by the department is of like kind and quality of goods, at or about the same time of export, to other buyers in the same destination country. In the impugned order the ld. Commissioner's finding, that the country of destination in P....
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....a final finding of fact that the FOB price was correctly shown by the assessee. Learned counsel for the appellant could not show us anything concrete in support of his contention. From the orders of the first and the appellate authorities nothing can be found to hold that the FOB price was excessive or not genuine. The Tribunal has also given a finding that the Adjudicating Authority has arbitrarily computed the FOB value and have fixed the credit on that basis. We accept findings of the Tribunal in the absence of any concrete evidence having been put to support the contention of the learned counsel that the FOB price is inflated. In this behalf we cannot ignore the documents supplied by the assessee before the Revenue which we have already mentioned earlier. It is not a case of the Revenue that the assessee has not received the FOB price at all. That is clear from the BRCs. Therefore, the FOB price is supported amply by the BRCs with which no fault is found. Once that is clear, there will be no question to hold that the FOB is inflated. 11. Merely by stating that value of fabric could not be determined under Rule 3,4 & 5 is not sufficient, the revenue have to show what steps th....
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....t, value of which department sought to apply, are absolutely identical to the goods of the Appellants, the value declared by the Appellants cannot be disputed. Therefore, the FOB declared by the Appellants deserves to be accepted. 13. These appeals are thus allowed with consequential relief, if any. (Dictated Pronounced in Court) (Sanjiv Srivastava) Member (Technical) (Ajay Sharma) Member (Judicial) I have gone through the order prepared by Learned Member (Judicial). Even after lot of persuasion I am not in position to agree with the same. The issue under consideration is in respect of valuation of goods presented for export under claim of benefit under DEPB Scheme (Duty Entitlement Passbook Scheme). 2.1 The facts leading to market enquiry/ survey in the present case have been highlighted by the adjudicating authority in para 1 of his order. The facts as recorded are reproduced below: "1.1 M/s Satishkumar Arora & Sons (CHA No 11/790) filed two S Bs No 798308 and 7983317 both dated 24.12.2009 under EPCG & DEPB Schemes for export of Fabrics made out of spun yarn from MM Fibre and MM Filament yarn, W W Embroidery, W W metalized yarn w 112cm of M/s P D Impex ....
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....e taken which is as follows: S No S/B No & Date Exporter Name Price Per Yard Inv No & Date US $ Rs 1 8024378/ 06.01.2010 Provogue (India) Ltd Mumbai 53 0.350 16.10 435/09-10 05.01.10 2 8027019/ 07.01.2010 Provogue (India) Ltd Mumbai 53 0.330 15.20 440/09-10 07.01.10 3 8031897/ 08.01.2010 Satguru International Mumbai 2 0.430 19.80 SGI/120 06.01.10 4 8093132/ 20.01.2010 Provogue (India) Ltd Mumbai 53 0.355 16.35 484/09-10 27.01.10 1.9 This analysis gives the value of the cloth at near about 0.40 $ per yard or 0.30 EURO per yard. 1.10 In light of above, it becomes clear that the value declared by the exporter is above normal export price of the similar fabrics. Howver, exporter presented its case on 01.02.2010 and pleaded that their value is not wrong as they are exporting in small quantity in comparison of the manufacturer of the similar fabrics. They also produced the cost sheet as asked from them through query memo." 2.2 In para 5, learned brother has reproduced the Customs Valuation (Determination of Value of Export Goods) Rules, 2007 and has concluded that Rule 3 lays down a thor....
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.... the value of goods in present case at 0.30 EURO per yard. However since he himself found that the value as determined in terms of market survey/ enquiry was around 0.45 EURO he determined the value accordingly. 2.5 The procedure for rejection of declared value as prescribed under Rule 8 has also been followed and from the facts as recorded above it is quite evident that proper query memo was also issued. Appellant was also asked to submit the costing sheets etc for determination of value under Rule 5. However the method under Rule 5 was not adopted. The reasons as recorded in order in appeal for not adopting the same are as follows: "The appellant has also argued that the value was required to be determined on the basis of the costing of export product under Rule 5 which was submitted by them to the adjudicating authority. The appellants had taken the cost of grey fabric as Rs. 35.25 per yard, cost of printing as Rs. 13.00 per yard apart from cost towards shrinkage, packing and interest charges on capital and transport etc, and has submitted sample purchase invoice for indicating the cost of grey fabrics and printing charges. It is observed that no evidence to correlate the ....
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....s that the declared PMV may also be verified, by the proper officers of Customs, at the time of examination of goods as was done in the case of drawback shipping bills, that, upon examination of the goods, where the Examining Officer finds that, in view of the quality or conditions of the goods, prima facie, the PMV declared, or the f.o.b. price, was unduly high, the matter may be referred to the Assistant Commissioner (Export) along with a sample of the goods wherever possible and, in such cases, the PMV may be verified/determined through market enquiries or by such process as the Assistant Commissioner (Customs) may direct. Circular No. 15/97, dated 3-6-1997 recognises the similarity between DEPB and a duty drawback scheme when it provides that the declared PMV may also be verified by the proper officers of customs at the time of examination of goods as was done in the case of drawback shipping bills. 35. The law laid down in Om Prakash Bhatia [2003 (155) E.L.T. 423 (S.C.)] has been followed by the Supreme Court in Gurucharan Singh [Judgment in Crl.A. No. 576 of 2008, dated 1-4-2008 [2008 (224) E.L.T. 497 (S.C.)] and Brooks International - (2007) 10 SCC 396. The Supreme Court,....
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.... of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions "prohibiting", "restricting" or "otherwise controlling", we cannot cut down the amplitude of the word "any prohibition" in Section 111(d) of the Act. "Any prohibition" means every prohibition. In other words all types of prohibitions. Restrictions is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues." 10.The next question is - Is there any prohibition imposed under other law which is for the time being in force? For this purpose, reliance is placed upon Section 18 of the Foreign Exchange Regulation Act, 1973 relevant part of which reads thus :- 18. Payment for exported goods. - (1)(a) The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of all goods or of any goods or class or goods specified in the notificati....
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....o the notification issued under the said Section, relevant part of which reads thus :- "GSR. 78 - In exercise of the powers conferred by sub-section (1) of Section 18 of the Foreign Exchange Regulation Act, 1973 (46 of 1973), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Economic Affairs) No. GSR 2641, dated the 14th November, 1969, the Central Government hereby prohibits the export otherwise than by post, of all goods, either directly or indirectly, to any place outside India. Other than Nepal and Bhutan, unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing :- (i) the full export value of the goods, or (ii) if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions express to receive on the sale of the goods in the overseas market, and affirms in the said declaration that the full export value of the goods (....
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.... any goods by reference to their value. In the present case, on export of goods in question, no duty was payable under the Act. It was, therefore, contended that there is no scope of application of Section 14 for determining the value of goods by applying the criteria laid down in the said Section. In our view, this submission cannot be accepted. For determining the export value of the goods, we have to refer to the meaning of the word 'value' given in Section 2(41) of the Act, which specifically provides that value in relation to any goods means the value thereof determined in accordance with the provisions of subsection (1) of Section 14. Therefore, if the export value of the goods is to be determined, then even if no duty is leviable, the method (mode) for determining the value of the goods provided under Section 14 is required to be followed. Section 14 specifically provides that in case of assessing the value for the purpose of export, value is to be determined at the price at which such or like goods are ordinarily sold or offered for sale at the place of exportation in the course of international trade, where the seller and the buyer have no interest in the business of each ....
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.... with Section 11(1) of the Foreign Trade (Development and Regulation) Act, 1992, which inter alia provides that no export or import shall be made by any person except in accordance with the provisions of this Act, the rules and the orders made thereunder and the export and import policy for the time being in force. Rule 11 reads thus :- "11. Declaration as to value and quality of imported goods. - On the importation into, or exportation out of, any customs ports of any goods, whether liable to duty or not, the owner of such goods shall in the bill of entry or the shipping bill or any other documents prescribed under the Customs Act, 1962 (52 of 1962), state the value, quality and description of such goods to the best of his knowledge and belief and in case of exportation of goods, certify that the quality and specification of the goods as stated in those documents are in accordance with the terms of the export contract entered into with the buyer or consignee in pursuance of which the goods are being exported and shall subscribe to a declaration of the truth of such statement at the foot of such bill of entry or shipping bill or any other documents." 18.Hence, in cases where ....