Per Lajja Ram :

In this appeal filed by M/s Om Prakash Bhatia, the matter has come-up before the Larger Bench of 5 Members, on a reference by the Bench before whom it was argued on behalf of the appellants that over-invoicing of the goods for export was not an offence under the Customs Act, 1962 (hereinafter referred to as the 'Act'). It had been held in the impugned order-in-original dated 31.3.99 passed by the Commissioner of Customs, Inland Container Depot (ICD), Tughlakabad, New Delhi that the appellants tried to export garments (ladies skirts) of cheaper quality by showing an enhanced value. Their attempt was to get drawback of more than the price of the same in the local market. Value of each lady's skirt in the market was found to be Rs. 45/- per piece, while the declared value was of Rs. 434/- per piece. The amount of drawback per piece claimed by the appellants was Rs. 78 as against the market price of Rs. 45 per piece. The Commissioner of Customs - the adjudicating authority - as per the impugned order confiscated the said goods subject to the payment of redemption fine of Rs. 10,00,000/-. A penalty of Rs. 20,00,000/- was imposed.

When the matter came-up for hearing before the regular bench on 21.09.2000, the appellants relied upon the Tribunal's decision in the case of M.V.T. International Vs. Commissioner of Customs, New Delhi - 2000 (117) ELT 258 (Tribunal).

The Departmental Representative submitted that a contrary view had been expressed in a number of other decisions. Faced with such conflicting views expressed by different benches of the Tribunal having coordinate jurisdiction, the matter has been placed before the present Larger Bench of 5 Members.

2. The matter was heard on 23.10.2000 when Shri Prem Ranjan Kumar, Advocate submitted that the matter was already covered by the 3 Member Larger Bench decision of the Tribunal in the case of J.G. Exports & Ors. Vs. Collector of Customs, New Delhi - 2000 (40) RLT 755 (CEGAT-LB), wherein the Larger Bench of the Tribunal had held that Section 14 of the Act was not applicable to the over-valuation of the export goods. According to the understanding of the Bench, Tribunal's earlier decision in the case of Shilpi Exports Vs. Collector of Customs, Calcutta - 1996 (83) ELT 302 (Tribunal) had been up-held by the Supreme Court as reported at 2000 (115) ELT A-219. He pleaded that the contrary decision of the Tribunal dated 26.8.99 in the case of Galani Infin Pvt. Ltd. Vs. Commissioner of Customs, New Delhi - 1999 (35) RLT 3 (CEGAT) has been over-ruled by the aforesaid Larger Bench decision in the case of J.G. Exports & Ors. Vs. Collector of Customs, New Delhi - 2000 (40) RLT 755 (CEGAT-LB). He also referred to the Calcutta High Court's decision in the case of Collector of Customs, Calcutta Vs. Lexus Exports Pvt. Ltd. - 1994 (69) ELT 228 (Calcutta). It was also submitted that as no export duty was chargeable on the garments, the provisions of Section 14 of the Act were not applicable and there was no requirement of declaration of value of the exported goods as per the provisions of that Section 14 of the Act.

In reply Shri P.K. Jain, SDR and Shri Sanjeev Srivastava, JDR submitted that the declaration of value was a requirement of the shipping bill, and for any export, a shipping bill was required to be filed under Section 50 of the Act. The value in relation to any goods, including the goods for exportation, meant the value of such goods determined in accordance with the provisions of sub-section (1) of Section 14 of the Act. Reference was made to the definition of 'value' under Section 2 (41) of the Act. The ld. DR also referred to the provisions of Shipping Bill and Bill of Export (Form) Regulations 1991.

3. We have carefully considered the matter. The facts of the case may be briefly narrated. M/s Om Prakash Bhatia filed 4 shipping bills in 1998 for export of 28,000 pieces of ladies skirts @ of $ 10.25 per piece (Rs. 434 per piece), amounting to Rs. 1,21,54,447, to Dubai. On