TaxTMI 
TaxTMI 
2005 (8) TMI 168
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....led in the length of more than 20 yards per roll. The total FOB value declared was Rs. 75,65,471.29. 1.2 On 11-3-2003, through their Custom House Agent, they filed an application requesting the goods to be returned 'back to town'. 1.3 However, on 2-3-2003 the goods were examined by the Customs authorities and it was alleged that the said goods were rags/chindis instead of fabrics as declared and they were grossly overvalued as per the FOB declaration. Enquiries were conducted and statements were recorded and a show cause notice dated 13-7-2004 was issued calling upon the exporters to show cause : (i) Why the goods covered under the two Shipping Bills should not be confiscated under Section 113(h)(ii) of the Customs Act, 1962? ....
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.... rebate would be allowed on the said goods. Hence this appeal. 3. After hearing both sides, and considering the issues it is found : (a) the question of applicability of and liability to confiscation under Section 113(h)(ii) of the Customs Act, 1962 cannot be upheld in the facts of this case, when Section 113(h)(ii) does not exist in the Customs Act; there is a Section 113(ii) which is applicable to export goods under claim of Draw Back which are found to be misdeclared & inadmissible Draw Back is claimed. Since the present exports are admittedly under DEPB Scheme, and not under claim of Draw Back, provisions of the Customs Act, 1962, 3(ii) or/& the invocation of Section 113(h)(ii) in the facts of this case as arrived cannot be upheld. ....
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....r the purposes of over valuation arrived and established by the Department. (ii) We find from the perusal of this decision in Yash Exports, that the decision has been arrived at without considering the fact of the review petition in the case of Prayag Exporters Pvt. Ltd. which was filed by Revenue in the Supreme Court after the decision of the Supreme Court in Om Prakash Bhatia's case and the subsequent rejection by the Apex Court, of the review petition filed by Revenue. In this view of the matter, we are not persuaded to accept the contention of the ld D.R. to follow the decision in the case of Yash Exports lnc. and or find any reason to refer to a Larger Bench this issue, as we do not find any conflicting decision on this subject w....
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..... Ltd. Thus confirming the ratio that only the goods which are dutiable or prohibited will be liable to confiscation under Section 113 of the Customs Act, 1962. The ld D.R. reiterated the findings of the ld. Commissioner." (e) We find that the goods were declared & are found to be in rolls of in 20 yards and the goods have been found to be fabrics. The question of declaration of quantum of value, is the only dispute, which has led to the present proceedings. There is an allegation of goods found to be rags/chindis. However, we find from the evidence arrived at by the ld. Commissioner that he has come to certain conclusion on physical examination of the samples himself that the goods under detention were irregularly woven warp and weft whi....
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....acts and circumstances of this case, when we do not find a liability to confiscation under Section 113(d), and also, after considering the status of the goods brought to a Customs area, on a Shipping Bill, filed under Section 50, but wherein these goods have still not attained the status of 'Export Goods' to be loaded on the vessel under Section 39 of the Customs Act, inasmuch as Section 51 clearance was not observed, would induce us to come to a conclusion, that there was force in the appellants' request, through their CHA on 10-3-2003 of requesting the goods to be 'taken back to town', which should have been considered. Export is an admittedly series of operations, and that Section 51 for the goods having not been trav....