PER T.P. NAMBIAR: These are two appeals filed by the above-captioned appellants against a common order passed by the Collector of Customs, Calcutta in Order No. 41/95 (Collr.) dated 2.2.5.1995. The appellant, Shri Sanjeeb Khanna is the

Proprietor of the other appellant company, M/s. Shilpi Exports. In terms of the impugned order, the Firm namely, M/s. Shilpi Exports are imposed with a penalty of Rs. 50.00 lakhs under Section 114 and a penalty of Rs. 15,000.00 was imposed on its proprietor who is the appellant, Shri Sanjeeb Khanna.

2. The facts of the case are that the appellants through their clearing agents, M/ s. M. Dutta Agency filed four Shipping Bills for export of 100% Mulberry Silk Superior Printed Ties to M/s. H.N.D. Kapur Textiles Ltd., Cheshire, SK 57NB, U.K. declaning the value as Rs. 22,38,251.36, Rs. 22,38,251.36, Rs. 22,38,251.36 and Rs. 32.77,439.50 respectively. The Shipping Bills were noted in Export Department on 25.6. 1993. The goods were examine " by the officers of the Appraising Docks and E.I.B. and were found to be Mulberry Silk Printed Ties. Representative samples were drawn and sealed in the presence of the appellant firm.

3. During the course of enquiry, a doubt was entertained on the declared value of these export products. It is the case of the Department that the representative samples were shown to M/s. Mohan's, New Market, Calcutta-87 and M/s. Handloom House. Calcutta-87. On inspection, they certified that similar Mulberry Silk Printed Ties were available in the local market @ Rs. 100.00 and 102.10 per piece. Thus it is the case of the Department that taking Rs. 102.10 on the higher side as per the above market prices collected, the total market once of the goods exported by the appellants would work out to Rs. 2.28.704.00 against the declared F.O.B. value of Rs. 22,38,251.36 each with reference to the three consignments as mentioned, above under DEEF Nos. 139 to 141 dated 7.7.1993 and the value of the fourth consignment would work out to Rs. 3,34,888.00 against the declared F.O.B. value of Rs. 32.,77,343.50. Accordingly., it appeared to the Department that there was overvaluation to the tune of Rs. 18,95,195.36 each against DEEF No. 139to 141 dated 7.7.93 (i.e. for the first three consignments) and that of Rs. 27,75,107.50 against the DEEF No. 142 dated 7.7.93 (i.e. for the fourth consignment).

4. Show cause notice was, therefore, issued as to why the penalty should not be imposed for having violated Section 113(d) of the Customs Act,'62 read with Clause 3 (3) of the Export (Control) Order, 1988 and Sections 3 and 4 of Foreign Trade (Development and Regulation) Act, 1992 and the benefit under DEEC Scheme for duty-free imports should not be rejected and why penalty should not be imposed on both M/s.Shilpi Exports and its Proprietor, Shri Sanjeeb Khanna in terms of Section 114oftheC.A.'62.

5. The appellants replied the same and after hearing, the impugned order was passed.

6. Learned Consultant, Shri B.N. Chattopadhyay contended on behalf of the appellants herein that there is in fact no over-valuation. He stated that the samples were drawn and they were sealed in the presence of the appellants. But the case of the Department is that these samples were sent for examination. But the reports of M/s. Mohan' s and M/s. Handloom House (supra), do not show that these were the very samples of the goods in question which were examined by them. Hence he contended that these are only two pieces of evidence relied upon by the Department, to show that there was over-valuation. However, these two pieces of evidence are not sufficient to hold so.

7. Learned J.D.R., Shri B.B. Sarkar on the other hand, contended that these two certificates both dated 27.9.94, goto show that the price of similar goods is Rs. 102.10, as opined by M/s. Handloom House and Rs. 100.00 as opined by M/s. Mohan's Tailors & Men' s Wear, Calcutta-87.

8. We have considered the submissions of both sides. The question for determination is whether