CITIZEN IMPEX Vs. COMMISSIONER OF CUSTOMS (EP)

JUDGEMENT

(1.) THESE are six appeals involving same set of facts and arising out of two order -in -originals in which four of the appellants are also common. Since the issue involved is same, they are being decided through a common order.

(2.) THE brief facts of the case are that two units i.e. Citizen Impex and Neptune Impex after purchasing fabrics from one M/s Shreeji Enterprise filed shipping bills for export under DEPB Scheme where the PMV was declared as Rs. 45/ - per yard in both cases but the FOB was declared as Rs. 73.41 per yard in the case of Citizen Impex and Rs. 73.59 per yard in the case of Neptune Impex. In the case of Citizen Impex, the total FOB value declared was Rs. 73,41,160/ - and the DEPB claimed amounted to Rs. 7,34,11.6/ - while in the case of Neptune Impex, the total FOB value was Rs. 1,44,52,630/ - and the DEPB claimed amounted to Rs. 14,45,263/ -. In both the case the shipping bills were accompanied by ARE -1 forms to show that the export goods were purchased from M/s Shreeji Enterprise, Surat and the same were removed under self removal procedure of excisable goods for export. In both the cases the rate of goods shown in ARE -1 form was Rs. 59.43 per yard exclusive of excise duty and Rs. 68.38 per yard inclusive of excise duty. The goods were examined on random basis and it was found that the total net weight of the goods was 4100 Kgs. as against declared weight of 7554.7 Kgs. in the case of Citizen Impex and 8077 Kgs. as against declared weight of 14503.7 Kgs. in the case of Neptune Impex. Thus the goods on examination were found to be less by about 45%. As per the statement of Shri Rakesh Agarwal, proprietor of M/s Shreeji Enterprises, the goods were purchased from open market and not manufactured by M/s Shreeji Enterprises and the ARE -1 Form incorrectly described M/s Shreeji Enterprises as a manufacturer of goods and gave its Central Excise Registration No. Market survey of the goods was also conducted from one M/s MRM Company, Kalbadevi, Mumbai in the presence of exporter's CHA in which he gave a quotation of Rs. 18/ - per meter for identical goods as per sample shown to him on 23.11.2004 which was only 36.50% and 40% of the PMV declared by the two exporters respectively. Statement of Shri Sunil Khandelwal, proprietor of M/s Citizen Impex and Shri Anil Kumar Krishna Kumar Gautam, Proprietor of M/s Neptune Impex were recorded wherein they inter alia stated that they and one Shri Suresh Ladha were working in a mill in Surat and that Shri Suresh Ladha offered them to do the export work and that they had neither the knowledge nor money for export and that Shri Suresh Ladha opened two units in their name and that Shri Suresh Ladha used to look after the export work and all the transaction were entered into by Shri Suresh Ladha and fabrics purchased from Shreeji Enterprises and that they were paid some money by Shri Ladha and that fabrics shown in the consignment were not of goods quality and the value should be around Rs. 13 to Rs. 20/ - per meter. Shri Suresh Ladha in his statement accepted the above facts that he was looking after the complete work of two units i.e. M/s Citizen Impex and M/s Neptune Impex that he put full finance in these companies and that these people (Shri Sunil Khandelwal and Shri Anil Kumar Krishna Kumar Gautam, proprietor) do not know the work of export and therefore it was their agreement that he will finance and look after the work and these two proprietors will take IEC in their names and that he used to get 75% of the income and 25% was given to the other two. He admitted that the PMV declared was Rs. 45/ - wherein the actual PMV was around Rs. 30/ - per meter which includes packing, transportation and office expenses etc.

(3.) IN view of the above facts, the PMV declared was rejected and goods were sought to be confiscated as they did not match in description given in Shipping Bills as per weight and value and DEPB was sought to be denied along with proposal for penalties on the two proprietors of M/s Citizen Impex and M/s Neptune Impex, Shri Suresh Ladha and Rakesh Agarwasl of M/s Shreeji Enterprises for abetment.