[Order per : Raju, Member (T)]. - The appellant, M/s. Nangalia Impex filed a shipping bill for export under DEPB scheme. Revenue recorded the statement of Shri Vimal Kumar Nangalia, parter of M/s. Nangalia Impex wherein he admitted that the value in the shipping bill was about 240% of the value declared in the AR-4. The present market value of the goods was declared as Rs. 4,19,100/- and the value declared in the AR-4 was raised Rs. 3,98,410/-. The value declared in the shipping bill was Rs. 9,57,141/-. A show cause notice was issued to the appellant seeking to confiscate the goods exported provisionally under Section 113(d) and (i) of the Customs Act, 1962, to deny entire DEPB benefit of Rs. 1,14,856/- and to impose penalty under Section 114(i) and (iii) of the Customs Act. The original adjudicating authority ordered confiscation of the said goods cleared provisionally and however, the same for redemption payment of fine of Rs. 2 lakh. The entire DEPB credit was denied and penalty of Rs. 1 lakh was imposed on M/s. Nangalia Impex and its partner Shri Vimal Kumar Nangalia under Section 114(i) and 114(iii) of the Customs Act. The Commissioner (Appeals) upheld the order of the original adjudicating authority. Aggrieved by the said order, the appellants are before the Tribunal.
2. No one appeared for the appellants.
3. From the ground of appeal it is seen that the partner had not admitted the declared inflated FOB value. It has been argued that the partner had only accepted the DEPB credit at 150% of the AR-4 value as C.B.E. & C. Circular permitted the difference between AR-4 and FOB value to be up to 150%. He further argued that the goods were released provisionally without any bond and therefore, confiscation cannot be upheld. It has been argued that the appellant had already at the stage of adjudication produced the evidence of receipt of full foreign exchange in form of bank realization certificate. The department has also not produced any evidence of contemporary exports at lower, higher or differential price.
4. Learned AR argued that there is a clear admission of over valuation in the state of the partner. He argued that in view of the clear admitted over valuation, the offence is clearly established. He also relied on the impugned order.
5. We have gone through the rival submission.
6. We find that the Revenue is willing to accept a FOB price up to 50% higher than the AR-4 price without market enquiry. In case of declared FOB value being more 150% it mandates a market enquiry. In the instant case no market enquiry has been conducted. In the absence of any market enquiry the declared FOB value cannot be rejected. Furthermore, in the instant case Revenue has also not produced any evidence of contemporary exports while the appellants have produced the bank realization certificate for the entire declared FOB. Under these circumstances, it is found that the Revenue has failed to establish this case and therefore, the appeal of M/s. Nangalia Impex is allowed. Since the appeal of M/s. Nangalia Impex is allowed, no penalty on its partner can be imposed. Appeals are disposed of accordingly.
(Operative part of the order pronounced in Court)