COLOURTEX Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) ALL these appeals are preferred against Order -in -Original No. KDL/COMMR/78/2003, dated 26 -12 -2003. Since all the appeals are arising out of the issue from the same Order -in -Original, they are being disposed of by a common order.

(2.) THE relevant facts that arise for consideration are appellant M/s. Colourtex is a merchant manufacturer and was engaged in the business of export of dyes, chemicals and polished diamonds. The appellants purchased CD ROMs from M/s. Padmini Polymers Ltd., New Delhi at a price of Rs. 600/ - to Rs. 615/ - per piece and exported through Kandla Port. On an investigation conducted by DRI, show cause notice was issued seeking to re -determine the value of the CD ROMs exported on the ground that the value which was declared was excessive. The said show cause notice also sought to impose penalties on the partner of the exporter M/s. Colourtex, M/s. Adani Exports Ltd. and M/s. Padmini Polymers Ltd. All the appellants herein contested the show cause notice on merits before the adjudicating authority. The adjudicating authority did not agree with the contentions raised by the appellants and confirmed that the appellant M/s. Colourtex had overvalued the CD ROMs exported and coming to such a conclusion re -determined and reduced the FOB value and proportionate DEPB credit, he also ordered for confiscation of the CD ROMs, imposed penalty on M/s. Colourtex, Shri Jariwala, M/s. Adani Exports Ltd. and M/s. Padmini Polymers Ltd. Hence these appeals.

(3.) LEARNED counsel Shri Uday Joshi, appearing on behalf of M/s. Colourtex Ltd. submits that the CD ROMs which were exported by the appellant were purchased from M/s. Padmini Polymers Ltd. It is his submission that M/s. Padmini Polymers Ltd. had cleared the said CD ROMs under the cover of AR4s which were purchased by the appellant M/s. Colourtex at a price varying from Rs. 500/ - to Rs. 615/ - per piece. It is his submission that at the time of export appellant M/s. Colourtex has filed 29 shipping billings for export of the said goods and the value declared for such exports was between US$ 18 to US$ 18.15 (approximately Rs. 764/ - to Rs. 770/ - per piece) and all the shipping bills were finally assessed. It is his submission that the export proceeds for all the shipping bills were realized in full from the foreign buyer. He would submit that though the present market value (PMV) of the goods was not mentioned on the shipping bill, the reason for doing so was that there was a value cap on exports under DEPB scheme for the CD ROMs. He would draw out attention to the Public Notice No. 15/97 -2002, dated 8 -6 -1998 which was issued by the DGFT read with Para 7.36A of undertook of procedures of imports and exports. It is his submission that C.B.E. and C. vide Clarification No. 69/97 -Cus., dated 8 -12 -1997 had clarified that if the FOB value is within 150% of the manufacturers price, such FOB value is to be ascertained. It is his submission that in the current case the FOB value is less than the limit as laid down by the C.B.E. and C. Circular. It is his submission that the show cause notice which was issued to the main appellant, the partner of the appellant had relied upon number of show cause notices/investigations carried out, both for imports and exports made by M/s. Padmini Polymers Ltd. and others as has been referred to, but for the purpose of value of CD ROMs in question reliance is placed upon the exports made by M/s. Padmini Polymers Ltd. and M/s. Harshita Ltd. It is his submission that there is error for the purpose of discarding the export value filed by the appellant M/s. Colourtex as they had always considered the invoice value/AR4 values mentioned on the documents on which the CD ROMs were cleared by M/s. Padmini Polymers Ltd. It is his submission that there is no evidence adduced by the authorities of any contemporary export at a different price. It is his submission that DEPB credits for the FOB value declared by the appellants were given after obtaining no objection certificate from SIIB who had endorsed the shipping bills. It is his submission that M/s. Colourtex was not related with M/s. Padmini Polymers Ltd. or the foreign buyers in any way and the impugned order is not speaking order as such as the same reiterates the allegations made in the show cause notice but does not take into consideration various submissions made by the appellants before the adjudicating authority and more specifically in respect of Circular No. 69/97 -Cus., dated 8 -12 -1997. He would rely upon the judgment of the Tribunal in the following cases : (1) Cannon Steel Pvt. Ltd. - 2002 (145) E.L.T. 490 (Tri. - Del.) (2) Cora Chem - 2002 (146) E.L.T. 718 (Tri. - Mumbai) (3) Polynova Chemical Industries - 2005 (179) E.L.T. 173 (Tri. - Mumbai) (4) Advance Exports - 2007 (218) E.L.T. 39 (Tri. - Ahmd.) He would also rely upon the judgment of the Honble Supreme Court in the case of Suresh Jhunjhunwala - 2006 (224) E.L.T. 497 (S.C.) and more specifically to Para 20 of the said judgment for the proposition that the judgment delivered in the case of drawback will be equally applicable in the case of DEPB scheme also. While submitting up he would submit that the impugned order being an order which has been issued without considering the valid evidences putforth by the appellant M/s. Colourtex and its partner is liable to be set aside and he prays for the same.