TaxTMI 
TaxTMI 
2026 (8) TMI 938
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....ntelligence that the appellant was availing inadmissible drawback byway of over-invoicing the export goods, a team of DRI officers from Noida Regional Unit visited ICD Pant Nagar, after which the goods were examined physically and it was alleged that the goods were of inferior quality and their values declared were very high. On market enquiry conducted, by way of costing given by a couple of manufacturers, the export goods were considered as over-invoiced and consequently, seized on the ground that they were liable for confiscation u/s 113 of the Customs Act, 1962. 4. On the request made by the appellant for release of goods on provisional basis and the drawback shipping bills may be converted into normal shipping bills, the goods were provisionally released and export of goods was allowed thereafter. After export of goods was complete, the appellant received the entire remittances equivalent to the FOB value. 5. On the basis of aforesaid investigation, show cause notice was issued for confiscation of goods on the allegation of overvaluation with intent to avail inadmissible drawback, rejection of declared value and imposition of penalties u/s 114 and 114AA on the appellant.....
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....ommissioner (Appeals) held that the appeal filed by the appellant is time barred, despite the fact that the appeal was filed within the condonable period, with delay of only 17 days and the reasons provided for delay i.e. 'shifting of counsel's office', constitutes sufficient reasonable cause and therefore delay in filing appeal was liable to be condoned. 11. Further, despite the fact that the appellant had only claimed drawback which was rejected and no amount of drawback was received by the appellant, the Commissioner (Appeals) held that the conditions of mandatory pre-deposit has not been fulfilled as 7.5% of amount of drawback has not been deposited and therefore mandatory condition of pre-deposit has not been fulfilled. 12. Furthermore, despite the aforesaid findings on the issue of limitation and pre-deposit, the Commissioner (Appeals) proceeded to decide the appeal on the merits by reiterating the findings recorded in the adjudication order. 13. Aggrieved by the impugned Order-in-Appeal dated 19.07.2024, the appellant has preferred the present appeal. 14. The submissions made by the Appellants are summarized as under:- I. During the pendency ....
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.... to the exporter and not in the case such as the present case where drawback was never disbursed to the exporter and therefore, the appellant is not required to deposit 7.5% of the drawback amount. 15. Learned Authorized Representative appearing on behalf of the Respondent-Revenue reiterates the findings recorded in the impugned order. 16. Heard both the sides and perused the appeal documents. 17. Before going into the merits of the case, we would like to examine the preliminary objections raised in the Impugned Order. In the impugned order, it has been observed that the appeal is time barred, as there was a delay of 17 days. We find that the Ld. Commissioner (Appeals) has finally decided the issue on merits. Thus, it appears that the Commissioner (Appeals) has condoned the delay and decided the issue on merits. 17.1. As regards findings recorded in the impugned order on pre-deposit, we agree with the submission of the Appellant that there was no requirement of pre-deposit of 7.5% of drawback amount, as the amount of drawback was never received by the appellant and therefore, we hold that there was no requirement of its pre-deposit. As the Ld. Commissioner (Appeals) has....
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....ificate was demanded by the Department in the instant case but the costing done by some manufacturers was accepted without considering the actual cost of raw materials etc. 7. In view of the above, we are of the view that costing certificate on which the department relies does not have any evidentiary value for determining the cost of the exported goods. It is found that the Appellant has produced all bills/invoices of purchases of goods with payment details thereof. The Department did not challenge its authenticity. In the case of M/s Peerless Consultancy Services Private Limited vs. Commissioner of Customs (PORT), Kolkata; 2013-(291) E.L.T. 201 (Tri.- Kolkata), it has been held by the Tribunal that the burden of proof is on the Department regarding overvaluation in absence of flow back of payment made to the merchant-exporters. Moreover, we find that the Appellant had undoubtedly received remittances equal to the FOB value of the exported goods. The department has not proved any flowback of the money from foreign buyers to exporter or vice versa. There is no proof at all that any transaction of money was carried out other than the payment of FOB value of goods. We find s....