Customs, Excise and Gold Tribunal - Delhi
M/S Dimensions India vs Cc New Delhi on 26 March, 2001
Equivalent citations: 2001(75)ECC663, 2001(138)ELT800(TRI-DEL)
ORDER
V.K.Agrawal
1. In this appeal filed by M/s Dimension India, the issue involved is valuation of Cotton Shirts exported by them under Duty Entitlement Pass Book (DEPB) scheme.
2. Shri J.M.Sharma, ld. Consultant, with Shri J.S.Agrawal, Advocate, submitted, that the Appellants, a regular exporting unit, filed a shipping bill on 3-8-99 in respect of 100% Cotton Gents Shirts and declared the price US$ 10.75 per piece(Rs 463.85 in Indian Currency): that Commissioner of Customs under the impugned Order lowered the valuation of the shirt to Rs. 65 per piece on the basis of market enquiry: that no evidence has been brought on record as to how the valuation has been taken to be Rs. 65 per piece and as to from whom and of what goods the market enquiry was made. The ld. consultant emphasised that at no stage the report of market enquiry has been disclosed to them and as such the Commissioner has not brought on record any evidence to prove that the cotton shirts exported by them were over valued at all. He finally submitted that as per the purchase Order dt. 20th June 1999 of M/s Discovery Gen. Tdg. LLC, Ajman, U.A.E, the price was US$10.75 only and both under Foreign Exchange Regulation Act as well as Foreign Trade Development Act the Appellants are duty bound to declear the value which is not less than the export price, otherwise they are liable to be acted against under these Acts. He also contended that even if it is held that the value was mis-declared no duty is imposable on them.
3. Countering the arguments, Shri P.K.Jain, ld. SDR, submited that in the case of exports under DEPB Scheme, the present market value besides the export value is of utmost importance as the amount of credit against such export product has not to exceed 50% of the present market value of the export product;that a catagorical charge was made in the show cause notice dt. 13-10-99 on the basis of market enquiry. which has not been rebutted by the Appellants in their reply to the show cause notice; that as mentioned by the Appellants in their reply the Commissioner examined the shirt in their persence during the personal hearing and he had given his specific findings that the fabric used in the export goods was of very poor quality and by no means it could be more than the price determined during the market enquiry; that the Appellants have not brought any evidence on record to contradict the market enquiry as well as the findings of the Commissioner given after the examination. He relied upon the decision of Larger Bench of the Tribunal in the case of Om Prakash Bhatia Vs. CCE Delhi, 2000 (41) RLT 871, wherein it was held that over invoicing of export consignment is an offence under the Customs Act, 1962 and the decision in the case of J.G.Exports Vs. CC New Delhi, 2000(40) RLT 755 was over ruled.
4. We have considered, the submissions of both the sides. The Appellants have referred to purchase order placed by the Customer abroad according to which the export price agreed upon was US$ 10.75. The Department has issued the show cause notice after conducting the market enquiry which refelcted that the price should be ranging between Rs. 55 to Rs. 65 per piece only instead of Rs. 463.83 mentioned in the shipping bill. We find substantial force in the submission of the Ld. Consultant that in absence of market enquiry being disclosed to the Appellants they have been deprived of the opportunity of rebutting the same effectively. It is not apparant from the impugned Order as to the person from whom the market enquiry was conducted and what was their status or experience in the field of readymade garments. We also observe that appellants have also contended in their reply to the show cause notice that on earlier occasion, market enquiry was conducted by the Department and the value of the shirt was found to be reasonable and the full DEPB claim was allowed. The Commissioner discarded this argument by saying that no comparison can be made as the present case is entirely independent of the previous one. In view of the facts that the details of market enquiry has neither been disclosed to the Appellants nor been disclosed in the impugned Order, it suffers from violation of principles of natural justice. We, therefore, set aside the impugned Order and allow the appeal by remanding the matter to the Adjudicating Authority with the direction to decide the matter afresh after disclosing the report of market enquiry to the Appellants and after affording a reasonable opportunity of making representation by them and after following the principle of natural justice. The appeal is thus allowed by way of remand.