Judgment:
In this case 2728 pieces Art silk saris have been confiscated for not corresponding to the declared description and the value, under the provisions of Section 113 (ii) of the Customs price, declared value of the export goods cannot be rejected in terms of Section 114, requires to be accepted in the light of the ratio of the Tribunals decision in Advance Exports Vs. CC, Kandla 2007 (218) ELT 39 (Tri.-Ahmd.). The further plea that sale proceeds of goods exported under two Shipping Bills have been realized and therefore the amount remitted has to be accepted as the price of the goods is also a contention which merits acceptance. Although there is no proof of realization of sale proceeds of goods covered by the 3rd Shipping Bill, the first plea, i.e. absence of evidence of contemporize export of identical goods at lower price will cover the goods exported under the 3rd Shipping Bill also. In the light of the above, charge of over invoicing of art silk saris is set aside as not sustainable. Act, 1962 and since the goods had already been exported and that the exporter had claimed ineligible DEPB credit of Rs. 2,51,644/-, a penalty of Rs. 2,60,000/- has been imposed upon the appellants under Section 114 of the Act and a fine of Rs. 4,00,000/- in lieu of confiscation has also been levied.
2. We have heard both sides. The submission of the exporters that in the absence of any evidence of any contemporary export of identical goods at lower Per: Jyoti Balasundaram,
3. As regards the DEPB claim, we find that the authorities have treated the art silk saris as made ups falling under DEPB product code 89 and S. No. 43(b), while the exporters contention that the art silk saris are fabrics falling under Chapter 52.54/55 falling under product code No. 89 and S. No. 43 (a) requires to be accepted in the light of CBEC Circular No. 557/53/2000-CX dated 30.11.2000. The exporters claimed DEPB benefit at the rate of 9% FOB in terms of S. No. 74 of product code No. 89. Therefore, although they are not entitled to 11% as per the Boards order, still they cannot be denied credit at the rate of 9% as claimed.
4. In the result, we hold that the goods are not liable to confiscation as we are satisfied that there is no contravention of provision of Section 113(ii), and accordingly set aside the confiscation and penalty and allow the appeal.