TaxTMI 
TaxTMI 
2005 (11) TMI 135
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....against the appellants alleging that the appellants firm had entered for export, a consignment of 1500 piece of Quartz Analog Watches under DEPB Scheme, prescribed under Para 7.25 of the Exim Policy 1997-2002 by over-invoicing the goods to claim undue benefit under the said scheme. The consignment was detained at Export Terminal of Air Cargo Complex. Certain incriminating documents were seized from the premises of the appellants. The main charges against the appellants are that the Quarts Analog Watches were purchased at Rs. 73/- per piece but the value declared to the Customs was US $ 32.50 per piece. The expert opinion of the M/s. HMT Ltd. fixes the value of the watches at Rs. 230/- per piece. Hence it was alleged that the inflated value ....
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.... and 79/98-Cus., dated 22-10-98. The provisions of Circular No. 23/99-Cus., 11-5-99 cannot be invoked for consignment exported earlier. Para 4 of the Circular provides that the only Commissioner can make enquiry to deny the benefit if the circumstances mentioned in Para 3 exists. (iv) There has been failure to note that the value in the shipping bill was the export value on the basis of which export proceeds in convertible Foreign Exchange had been received. Hence Section 113(d) will not apply and consequently penalty under Section 114(i) does not arise. (v) The opinion dated 3-3-2000 of M/s. HMT was assailed on the following grounds:- (a) The sample drawn and valued was of a particular model only while the export....
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.... (xi) Even though in the shipping bill, it has been declared that the watches were of assorted type, the adjudicating authority has recorded the finding in Para 36 on page 16 of the impugned order that the watches exported are of the same type and quality. (xii) The lower authority has grossly erred in ignoring the mandate under Section 14 of the Customs Act, 1962, by adopting the domestic value of the watches as determined by an opinion of M/s. HMT Ltd. (xiii) For the earlier consignment, misdeclaration cannot be assumed on the basis of the mis-declaration notice in the present consignment in terms of decision of the Tribunal in Well Knit Apparels (P) Ltd. v. C. C. - [1999 (106) E.L.T. 431]. (xiv) The misdec....
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....d 50% of the present market value of the export products. The ascertainment of present market value is entrusted to the Customs Department in terms of various Circulars issued by the Ministry of Finance. We would like to mention the particular Circular No. 15/97-Cus., dated 3-6-97. Paras 4 & 5 of the said Circular are re-produced below :- "4. The declared PMV may also be verified by the proper officer of the Customs at the time of examination of goods as is done in the case of drawback shipping bills. Where upon examination of goods the examining officer finds that in view of the quality or condition of the goods prima facie the PMV declared, or the f.o.b. price, is unduly high, the matter may be referred to the Assistant Commissio....
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.... take care based on the assessment, information received from the Customs as regards PMV. There is nothing in the Customs Act to enable the Customs authorities to determine the PMV. It is well known that the Customs department is undertaking a lot of agency function. The import/export statistics for the country is prepared by the Customs department. Various types of cess/fees for other departments are collected by the Customs. Similarly, the ascertainment of PMV is one such function undertaken by the Customs for the licensing authority. There is no provision under the Customs Act for levy of penalty for mis-declaration of PMV. As regards the present case, the Department has arrived at the PMV of the goods to be exported on the basis of expe....