LAWS(CE)-2004-2-334

CANNON STEELS PVT. LTD. Vs. CC

Decided On February 04, 2004
Cannon Steels Pvt. Ltd. Appellant
V/S
Cc Respondents

JUDGEMENT

(1.) The appellants are merchant -exporters. They filed 3 Shipping Bills in Customs House, Cochin for export of synthetic garments under the Duty Exemption Pass Book (DEPB) Scheme. Relevant particulars were declared in the Shipping Bills (S/Bs) as under: -

(2.) Heard both sides. Ld. Counsel for the appellants submitted that there was no reliable evidence in this case to show that the FOB value declared by them was incorrect. The department's own Circular dated 8.12.97 had acknowledged the fact the declared PMV could be higher by upto 50% of the export price. As the value declared by the appellants did not exceed 150% of export price, there could not be a valid charge, against them, of misdeclaration of value. Invoices issued by the Ludiana parties (manufactures) from whom the export goods had been purchased by the appellants were produced before the adjudicating authority but the same were not accepted, which was against the law laid down by the Supreme Court. The certificates of Bajwa Nagar Hosiery Association, which were produced by the appellants and would have gone a long way to disprove the department's allegation of misdeclaration, were also not accepted by the Commissioner. The appellants' request for cross -examination of the persons with whom the market enquiries were conducted by the department was also turned down. In the absence of cross -examination of such persons, their evidence ought not to have been relied upon by the adjudicating authority. The Commissioner erroneously applied the Board's Circular No. 23/99 -Cus. Dated 11.5.99 which had been issued after the time limit of 90 days fixed in the earlier circular for issue of show -cause notice expired. In this connection, Ld. counsel relied on the Tribunal's decision in Merchant Exports (India) Ltd. v. CC, Cochin, 2001 (74) ECC 339 (T) : 2001 (128) ELT 428 (Tri. - Del). Ld. counsel also raised a grievance that the appellants' request for retest of samples in an outside laboratory was not allowed by the Commissioner. The PMV deed Shipping Bills was as per the Ludhiana manufacturers' invoices and, therefore, there was no basis for the allegation of misdeclaration of value. Finally, Ld. counsel relied on Final Order No. 282/02/A dated 4.6.2002 passed by the Tribunal in the present appellants' own case (Appeal No. C/142/01/A).

(3.) The DR submitted that the finding of overvaluation of goods was based on the results of market enquiry conducted in accordance with law. The market enquiry reports were also taken under Panchnama which was signed by the appellants and, therefore, the reports could not be challenged by them. Ld. DR. also forcefully relied on the Supreme Court's decision in Om Prakash Bhatia v. CC, Delhi, 2003 (88) ECC 457 (SC) : 2003 (155) ELT 423 (SC) and submitted that, when margin of profit was apparently unreasonable, it was for the exporter to establish that the export value declared in the Shipping Bill was correct. The appellants did not discharge this burden of proof. Hence, the allegation of misdeclaration of value stood unrebutted. The chemical test report of the Custom House Laboratory was legally authentic and the same was binding on the party, who did not ask for any retest in the Central Revenues Control Laboratory of the department. On the other hand, they wanted to have the samples retested in an outside laboratory, for which they did not state any valid reason. The DR also vehemently argued that the penalty imposed by the Commissioner on the basis of the finding of misdeclaration was not assailable in the facts of this case. In this connection, he, again, relied on the Supreme Court's decision in Om Prakash Bhatia (supra).