Per K.S. Venkataramani : This appeal has been filed by the Collector of Customs, Kandla under Section 129 D (4) of the Customs Act, 1962 persuant to an order dated 12.5.1994 passed under Sec. 129 D (1) of the Customs Act, 1962 by the Central Board of Excise Customs seeking review of the Order-in-Original dated 15.3.94 passed by the Collector, of Customs, Kandla. The facts and the issues, as brought out by the Department, are as follows :

2. That based on the intelligence that M/s. Dimple Overseas Ltd. (hereinafter referred to as "the exporter'') were attempting to export plastic Newar/straps under DEEC Scheme by mis-declaring its description and actual value and that the exportproducts declared as ma4e from HDPE granules were in fact manufactured out or re-cycled plastic scrap/waste and were purchased for the purpose of export under DEEC Scheme, the officers of Directorate Revenue Intelligence intercepted and detained a consignment of 60 M. Tonnes of Polyethylene Newar Straps which was being exported by the exporter. The officers also recovered shipping bills and documents which accompanied these export consignments.

3. Scrutiny of the documents relating to this consignments revealed that the exporter have filed 10 shipping bills under 5 different DEEC books for export of 60 M. Tonnes of Polyethylene Newar/Strap declared to be made out of HDPE granules/powders for export to a Dubai based party M/s. International Textile Company, Dubai. The investigation has further revealed that the exporter has declared the total value of the consignments contained in tire said 10 shipping bills as US $ 30,00,000/- i.e. an exhorbitantly over-invoiced rate with the sole intention to enable themselves to avail disproportionately higher entitlement for import of prime quality HDPE granules up to a value of US $ 10,57,000/- completely exempted from Customs duty.

4. The exporter filed a Writ Petition in Delhi High Court challenging the seizure of the said export consignment and vide interim order dated 1.3.93, the Hon. Court directed the Collector of Customs. Kandla to allow export of the consignment and directed the DRJ to ascertain the correct quality and value of the export consignments. While allowing export of the said consignment, the Hon. High Court stayed endorsement on the DEEC Books regarding completion of the export obligation and the post export benefits to the exporters. On 4th March, 1993 the consignment was allowe4 to be exported after taking representative samples from the said consignments.

5. Representative samples drawn from the export consignments were got tested by the Dy. Chief Chemist, Bombay and HI, Bombay, wherein it was revealed that the export consignment happened to be a blend of co-polymers having varying specific gravities, thereby meaning that the goods are made out of hetrogenous plastic material. Statements of the concerned persons, who supplied the said material to M/s. Associated Plastic Industries, Bhavnagar, corroborated this view and it was established that the exporter/supporting manufacturer had intentionally procured low quality plastic material for a lower value.

6. Detailed scrutiny of the documents taken over during the course of investigation revealed that the exporter had misrepresented the facts relating to the nature, quality and value of the goods in their application to the licencing authorities while acquiring the said 5 advance licences. Further, the exporter had declared M/ s. Associated Plastic Industries, Bhavnagar, as their supporting manufacturer in their application before the licensing authorities though the said supporting manufacturer does not possess the requisite facilities for manufacture of Polyethylene Newar/ Strap as prescribed under the above referred advance licence/DEEC Books. The investigations conducted in this regard revealed that M/s. Associated Plastic Industries are having a non-functional monofilament yam making machine in their factory premises and they have never unde