AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2008 (9) TMI 327
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....ttracting credit @ 15% or more was subject to the condition that the amount of credit shall not exceed 50% of the PMV of the export product and therefore, PMV has a bearing on the quantum of credit admissible under DEPB scheme. The PMV was therefore required to be declared in the shipping bills. The goods involved in the present consignment were declared as steel balls which were eligible for DEPB @ 22% and therefore, declaration of the PMV was essential. 3. Investigations revealed that one Shri Ramkishore Agarwal, Proprietor of M/s. Jupiter Exports has sent the above four consignments along with shipping documents to the CHA, Shri Milind C. Kadam and thereafter instructed him on phone to rewrite the PMV of the goods in those shipping bills, which was accordingly changed as per the statement of Shri Miind G. Kadam, the CHA. These steel balls, as per statement of Shri Ramkishore Agarwal, were procured from Ludha Udyog and one Shri Brijesh Kumar Maheshwari, partner of Ludha Udyog, in his statement admitted that the PMV at the time of the sale of the goods was Rs. 33/- per gross for the size 1/4" and P.s. 14/- per gross for the size 1/8" but the invoices/shipping bills had been raise....
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....V determined by it but it cannot confiscate the goods as the provisions of Sec.113 (d) and (i) are not applicable in the present case. He referred to the various circulars issued by the CBEC in respect of the DEPB scheme wherein directions were issued that the consignments should not be held up for verification of PMV and that wherever PMV is found to be incorrect, a show cause notice should be issued within thirty days from the date of export failing which the declared PMV was required to be accepted. Later on further directions were issued that in case where fraud, collusion, suppression of facts is suspected, the inquiry period can be extended by the Commissioner for reasons to be recorded in writing and the consignment should be allowed provisional clearance and that such shipping bills will not be entitled to DEPB scheme till the market inquiries are completed and provisionally assessed shipping bills are finalized. Where the PMV is found to be unacceptable, a show cause notice was required to be issued as to why PMV declared should not be rejected or revised. All the circulars make it clear that the consignments were not required to be detained and the department was free to ....
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....and give the Customs authorities the power to investigate the correct value of the goods and for that purpose utilize the method prescribed under Section 14(1). The Foreign Exchange (Regulation) Act, 1973 also provide in Sec.18(1), that no goods can be exported unless the exporter furnishes to the prescribed authority a declaration in the prescribed form of inter alia the full export value of the goods supported by evidence. The prescribed authority under Sec. 18(1) is the Customs authorities. Under Sec. 67 of the 1973 Act, the restriction imposed by inter alia Sec.18 shall be determined to have been imposed under Sec.11 of the Customs Act and all the provisions of that Act shall have effect accordingly. He referred to the decision of the Supreme Court (sic) in the case of Om Prakash Bhatia v. Commissioner of Customs, Delhi - 2001 (127) E.L.T. 81 (Tri.-LB) wherein a similar view was taken and therefore, the goods becomes prohibited goods, which have been rightly confiscated. 7. We have considered the submission. We note that appellants are not challenging the PMV determined by the revenue arid their emphasis is on the fact, that in the present case the goods should not have been s....
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....oduce the definition of prohibited goods under the Customs Act, 1962. Prohibited goods have been defined under Sec. 2(33) of the Customs Act as under:- "...Prohibited goods means any goods the importer or the exporter of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with". This definition makes it very clear that prohibition is riot confined to Customs Act, 1962 but may be prescribed in any other law for the time being in force. The Supreme Court in the case of Om Prakash Bhatia - 2003 (155) E.L.T. 423 (S.C.) has analysed the above provisions and in para 9 has observed as under: "9. From the aforesaid definition, it can be stated that (a) if there is any prohibition of import or export of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean tha....
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....penal action. The term value also include the present market value as is evident from Para 7.36 of Handbook of Procedures for the period 1997-2002. Para 7.36 of Handbook of Procedures reads as under:- "7.36 A Credit under DEPB and Present Market Value. - In respect of products where the rate of credit entitlement under DEPE Scheme comes to 15% or more the amount of credit against each such export product shall not exceed 50% of the Present Market Value (PMV) of the export product. At the time of export, the exporter shall declare on the shipping bill that the benefit under DEPB Scheme against the export product would not exceed 50% of the PMV of the export product. Such a declaration shall be required only in cases where rate of credit under DEPB is 15% or more." The value of export is required to be declared m the shipping bill which is the document prescribed under Sec. 50(2) of the Customs Act and requires the exporter of any goods to subscribe to a declaration at the foot of the shipping bill as to the truth of its contents. The shipping bill has two columns, under the head value, requiring the exporter to show both FOB value as well as PMV. The Handbook of Procedures, Import....
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....) Dimension Overseas Pvt Ltd. - 2005 (181) E.L.T. 237 (Tribunal), Rioben International - 2006 (198) E.L.T. 55 (Tribunal), Ramesh Hegde - 2005 (179) E.L.T. 230 (Tribunal) etc. Thus, we hold that in case the FOB/PMV values are misdeclared the goods become prohibited goods and can be confiscated. 10. As regards the present case, the misdeclaration of PMV has not been disputed by the appellants and even otherwise there is ample evidence available to that effect in the form of statement of the CHA, who has stated that PMV was changed as per direction of Shri Ramkishore Agarwal, the statement of the supplier Shri Brijesh Kumar Maheshwari, partner of Ludha Udyog, invoices of identical goods sold by Ludha Udyog to other customers and similar goods sold by others duly supported by test reports. Such evidence was not available in the other cases cited by the ld. Advocate and the PMV determined by the department was disputed by the appellants therein. In the present case even the FOB declared has been disputed by the Commissioner and even though the ld. Advocate has submitted that there is no evidence to prove that FOB declared was incorrect, we find that they could not produce anything to j....