2019 (1) TMI 1735

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....They have filed three shipping bills all dated 31-1-2006 for export of Dyed and Printed Fabrics made from 100% Polyester Filament Yarn of a total FOB value of Rs. 1,55,47,700/- under DEPB Scheme claiming total DEPB amount of Rs. 12,12,721/-. Department after carrying out the necessary market enquiry re-determined the FOB value at Rs. 67,97,095/- and the benefit of DEPB was proposed to be reduced to Rs. 5,45,773/-. Consequently, a show-cause notice was issued to the appellant on 23-5-2006 proposing confiscation of the goods seized and released provisionally under Section 113(d), 113(h) and 113(i) of the Customs Act, 1962 read with Section 11 and 14 of the Foreign Trade (Regulation) Rules, 1993 for misdeclaration of quantity, value and excess....

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....bunal observing that there has been violation of principles of natural justice, remanded the matter to the adjudicating authority to allow cross-examination of the said witnesses. However, contrary to the said direction, the Learned Adjudicating Authority observed that the summons addressed to the said witnesses, were returned as "not delivered" by the postal authorities. However, the Learned Commissioner has relied upon the opinions of the said two witnesses in confirming the present market value for determination of FOB value and consequently, re-calculated the DEPB benefit. He has submitted that not allowing cross-examination of the witnesses, whose opinions have been relied upon in directing confiscation; rejection of transaction value ....

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....r. 5. We have carefully considered the submissions advanced by both sides and perused the records. This Tribunal in the first round of litigation, considering that there has been violation of principles of natural justice, remanded the matter to the adjudicating authority observing as follows : - "The finding of over-invoicing is based upon market enquiry reports dated 23-2-2006 of M/s. Tera Tex and M/s. Mangalam Textiles, of Kalbadevi, Mumbai both of whom opined that the fabrics were made of 100% polyester yarn of very light GSM and such fabric was commonly available in the market for approximately Rs. 23/- to Rs. 25 per yard. The appellants had asked for copies of these reports in their reply dated 14-3-2007 top the show ....

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.... Rs. 45.80 per yard by adding the transportation charges, packing charges, marking/lebeling, freight and profit margin. Further, he has observed that even though the departmental proceedings is not Court proceedings necessarily requiring the examination and cross-examination of the witnesses, the appellant's request was accepted as per Tribunal's order and since notices sent to the address of the said Mangalam Textiles and Teratex were returned with remark "Left", cross examination of the witnesses could not materialize. In nutshell, thus cross-examination of M/s. Mangalam Textiles and M/s. Teratex could not be completed in accordance with the direction of this Tribunal. However, the Learned Commissioner instead of deleting the said evidenc....