CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, CALCUTTA
S.S. Sekhon, Krishna Kumar, JJ.
Kanhaiya Exports (P.) Ltd. -Appellant
Versus
Commissioner of Customs (Port), Kolkata -Respondent
Final Order No. a-547/kol./2006 stay order no. s-816/kol./2006 application no. sps-565/2005 appeal nos. cdm-88 to 91/2005, 547 of 2006, 816 of 2006, 565 of 2005, 88 of 2005, 91 of 2005
Decided On : 07-07-2006
Act Referred
B.N. Chattopadhyay,J. Marianna
Per S.S. Sekhon :
The appellant's were exporters of goods in the name of "BARON GOLD SERIES". They got the said goods manufactured from M/s. Fair Electrodes Pvt. Ltd., who were having Central Excise registration
2.The Commissioner vide Order No. Kol./Cus./Port/72/2005 dated 06.05.2005 determined that the export goods covered under subject of 10 Shipping Bills having declared the FOB value of Rs. 4,13,37,876/- should be confiscated under Section 113 (d) under the Customs Act, 1962 read with Section 11 of FTDR Act, 1992 and Rule 11 of FT (Regulations) Rules, 1993, and since the goods were provisionally allowed to be exported, no redemption fine was imposed. The declared value of Rs. 65/- per piece was rejected and determined at Rs. 4/- per piece, Personal penalty of Rs. 5 Lakhs each on Kanhaiya Exports Pvt. Ltd. and its Directors, Shri Sudhir Satnaliwala under Section 14 along with the penalty of Rs. 5 Lakhs each on the Directors of M/ s. Fair Electrodes Pvt. Ltd., was arrived. Hence, the present appeal.
3. After hearing thematerial on record it is found:-
a) Full amount as per declared FOB values have been received and the appellant have submitted evidence to that effect before the Ld. Commissioner, no rebuttal of this proposition was shown to us as records detailed of payment received.
b) The foreign buyers is not related to the appellants, price is negotiated price, no part of the amounts of the benefit have been alleged or flowing to the foreign buyers, there is no material obtained by the Department of contemporaneous price of similar goods.
c) M/s. Fair Electrodes Pvt. Ltd., supply electrodes according to specification given by the exporters; goods were manufactured according to such specification and there is no dispute by the foreign buyers as regards to quality. The appellants have relied on the price list of M/s. Larsen and Toubro Ltd., showing that the price of certain varieties of electrodes to be much higher than the price of other electrodes; they challenged the people who cannot be said to be experts or technically qualified persons, and the appellants were denied cross examination of person where opinion were relied by the Department, such a