(1.) This appeal arises from OIO No. 37/2005, dated 20 -5 -2005 passed by the Com missioner of Customs, Cochin. The appellants had filed two Shipping Bills on behalf of M/s. Abhishek Exports, holders of IE Code No. 5299002980 for claim of DEPB credit under Sl. No. 60 of Product Group Code 89 of the DEPB schedule. The Shipping Bills were referred to SIB from Group VII for verification of value as it was suspected that the invoice submitted along with the Shipping Bills did not represent the correct FOB value. The Revenue has got the goods tested at M/s. South India Textile Research Association (SITRA), Coimbatore. In their report, they have stated that the cost of manufacturing the said garments would not exceed Rs. 40/ -CIU, Coimbatore also informed that this value was on the basis of market survey. The statement of Shri Sanjay Babu, Manager of M/s. Abhishek Exports, was also recorded. After due enquiries and investigations, the appellants were proceeded against for revocation of the FOB value of the goods covered by the two shipping Bills noted in the impugned order and the rate was fixed at Rs. 50/ - per piece for DEPB purposes as ascertained from the investigation. The appellants took a detailed defence and among which was that the opinion rendered by SITRA was on the basis of assumptions and presumptions and that they are not the competent authority to fix the FOB value of Shipping Bill. This plea has been rejected by the Commissioner and the goods manufactured in the noted shipping bills have been re -valued at Rs. 50/ - per piece. They have been imposed with penalty of Rs. 2,60,000/ -. This is under challenge.
(2.) THE learned Counsel submits that the Mumbai Bench, in the case of Prayag Exporters Pvt. Ltd. v. CC, Mumbai - 2000 (121) E.L.T. 819 (Tribunal), has held that export of the goods not being prohibited, clause (d) of Section 113 of the Customs Act, 1962 is not applicable. This judgment, according to the Counsel, is confirmed by the Apex Court and reported in 2003 (155) E.L.T. 4 (S.C.). It is his submission that invocation of Section 113 of the Customs Act, in the present case is not justifiable. On this ground alone, the appeal is required to be allowed in the light of this judgment. He also refers to Tribunal ruling in CC, Mumbai v. Select Impex Ltd. - 2003 (157) E.L.T. 453 (Tri. - Del.) wherein on a similar allegation, the Revenue appeal was dismissed on the ground that no evidence was adduced on records to show that the domestic prices of the export goods was lower than PMV declared by the noticee. He further refers to ruling of the Bombay Tribunal in the case of Sir Kasturchand Pvt. Ltd. v. CC (Export Promotion), Mumbai - 2001 (131) E.L.T. 269 (T) = 2001 (43) RLT 638 (CEGAT -Mum.) wherein it has been held that declared FOB value is required to be accepted for purposes of drawback and further held that over valuation had not been established by the Revenue. He refers to another order of the Tribunal in Time Masters v. CC (Exports), Mumbai - 2000 (124) E.L.T. 882 (T)=2000 (38) RLT 332 (CEGAT) wherein also the enhancement of value has been set aside on the ground that Revenue did not bring any material or evidence of over valuation. He contends that the SITRA cannot fix valuation of the goods and the main purpose of SITRA is for testing the goods. In this regard, he relies on the brochure of the SITRA which itself lays down that the purpose of setting up SITRA is for the purpose of research and for testing of the goods. They are not marketing authorities and they cannot speak about the market value. He relies on the Mumbai Benchs order in Suresh Junjunwala and Others - Final Order No. A -4 -6/WZB/2005/C -III, dated 17 -9 -2004 [2005 (183) E.L.T. 60 (Tri.)] wherein also the aspect pertaining to enhancement of value on the shipping bills was taken into consideration and the Tribunal set aside the same on the ground that the department had failed to exclusively prove that the exports were over valued in the absence of any expert opinion regarding the value of the export goods or their use.
(3.) THE learned SDR strongly opposed the prayer and contended that all the judgments are distinguishable. He contends that in some of the cited rulings, there was no evidence available while in the present case, the matter was referred to M/s. SITRA, Coimbatore and they have clearly given the value based on market enquiries at Rs. 40/ - per piece. He submits that the Commissioners order is sustainable and prays for upholding the same.