TEXCOMASH EXPORT Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) M /s. Texcomash Export have filed this Appeal against Order -in -Original No. 56/2000, dated 28 -11 -2003 by which the Commissioner of Customs has disallowed the drawback claimed by them and has imposed a penalty on them under Section 114 (iii) of the Customs Act.

(2.) SHRI A.K. Jain, learned Advocate, mentioned that the Appellants had made 29 export shipments of Children's garments through ICD, Tuglakabad, New Delhi during November, 1993 to June, 1994 and 9 export shipments of ladies garments through Mumbai Customs House during September, 1994 to October, 1994; that the proper officer at ICD New Delhi reduced the FOB value to Rs. 210/ - per set of garments and granted drawback claims; that the Government of India, by Order No. 406/99, dated 26 -3 -1999, has fixed the FOB value to be Rs. 242/ - per set and has ordered that the amount of draw back be settled as per law. The learned Advocate submitted that in the said Order, the Government of India has accepted the purchase price of Children's garments; that the findings in the impugned Order is factually incorrect in as much as that the earlier proceedings before the Government of India were the same pertaining to the correct ascertainment of the FOB value of the exported Children's garments; that once the Government of India has affirmed the FOB value of Rs. 242/ - per set, no officer of the Department could overgo/nullify the same just by saying that in the earlier proceedings there was no allegation of fraud, forgery or manipulation, etc.; that the principle of stare decisis also applies to this particularly when all the evidences on the basis of which allegation of fraud, forgery, manipulation etc. have been made were already in the possession with the Department when the proceedings before the Government of India was going on; that even after the issuance of show cause notice dated 7 -1 -2000, the Government's Order dated 26 -3 -1999 had not been challenged before the High Court; that on the other hand when the said order dated 26 -3 -1999 was challenged by the Appellant in the Delhi High Court, the Government, in its counter affidavit, has accepted the value of Rs. 242/ - for the purpose of their entitlement to draw back; that their writ is pending before the Delhi High Court. He, further, submitted that in respect of departmental Adjudication, the doctrine of res judicata very much applies. He relied upon the following decisions -

(3.) COUNTERING the arguments Shri S.M. Tata, learned Senior Departmental Representative, submitted that the doctrine of res -judicata does not apply in respect of the 29 shipments of Children's garments since the earlier proceedings before the Government of India were not the same as all the documents now relied upon were not before it; that at the time of earlier proceedings there was no allegation of fraud and forgery, manipulation, etc. was made as the issue simply related to valuation of the product in question; that thus the issue in the present proceedings is altogether different; that the overwhelming evidence available with the Department clearly shows that the appellants had deliberately manipulated the export value with the intention of getting higher drawback claim. He contended that doctrine of res judicata does not apply to tax matters as held by the Tribunal in the case of Peico Electronics and Electricals Ltd. v. CCE, Pune, [1994 (71) E.L.T. 1053 (T)]; that it has been held by the Tribunal that competent Authority can issue a fresh notice if new facts come to light; that the Appeal filed against the said decision has been dismissed by the Supreme Court as reported in 2000 (116) E.L.T. A72 (S.C.). Reliance has also been placed on the decision in the case of West Coast Paper Mills v. Superintendent of Central Excise [1984 (16) E.L.T. 91 (Kar.)] wherein the Karnataka High Court has held that the principles of res judicata are not applicable to Adjudication proceedings before the Revenue Authorities and decision in the case of J.K. Synthetics Ltd. v. Union of India - 1981 (8) E.L.T. 328 (Del.) wherein the Delhi High Court has held that an Authority can depart from his earlier stand for cogent reasons, such as fresh facts brought on record, etc. The learned Senior Departmental Representative reiterated the findings as contained in the impugned Order and contended that the Appellants had overvalued the goods with an intent to get drawback which was not due to them.