By TIOL News Service

MUMBAI, DEC 12, 2017: IN this case, proceedings were initiated against the appellants and others for having attempted to export sub-standard fabric which were claimed to be 'processed man-made fabric'.It was alleged in the SCN that the goods were highly overvalued; that the quantity was mis-declared in the export documents and that the intent had been to claim undue credit under the DEPB scheme.

The original authority rendered a finding that the goods were manufactured out of inferior polyester filament yarn, measuring less than half the declared quantity and inflated by about ten times the actual market value.He imposed penalties of Rs.5 lakh each on the individuals and Rs.10 lakhs on the appellant-exporter besides confiscating the export goods which were allowed to be redeemed on payment of fine of Rs.20 lakhs and by re-determining the value as Rs.60.98 lakhs instead of the declared Rs.5.70 crore; reduced the entitlement of DEPB credit to Rs.7.92 lakh instead of the claimed Rs.74.13 lakh.

All the appellants went in appeal before the CESTAT and while negating the allegations leveled in the SCN contended that forged documents had been inserted by the clearing agent who has a past record of such misdemeanours.

While rejecting the appeals, the Bench observed that it was not impressed by the plea taken by the appellants to portray the agent as the villain of the piece since there was no conceivable motive for the agent to indulge in such misdemeanours when the fact is that the appellant-exporter, admittedly, would derive the benefit of higher credit entitlement. Each of the judgments cited by the appellant were also distinguished while ruling against the appellants.

We reported this decision as 2017-TIOL-2664-CESTAT-MUM.

Now, the Appellants are again before the CESTAT with an application for rectification of mistake allegedly made in the said Tribunal order.

It is submitted that the decision of Tribunal was based on the confessional statement without examining independent evidence of retraction statement. So also, the appellant's say that the value declared was erroneously overvalued resorting to market value thereof; that the Tribunal did not deal the valuation of exportable goods properly for which its order suffers from legal infirmity. And finally, it is contended that the Customs authorities have no jurisdiction to restrict DEPB credit to a certain limit and there is no finding thereon.

The Bench inter alia observed -

"4. When paragraph 3 of the order of the Tribunal is examined, there appears no apparent mistake. Contentions of the appellants as above calls for microscopic examination of the order of Tribunal while Tribunal has no power to review its own order.

5. So far as evidentiary value of confessional statement is concerned, it is not necessary that Tribunal shall deal with each and every contentions of appellant in the order. A court is expected to make an overall assessment of the fact situation and test the same on the touchstone of the law to reach to its conclusion. Tribunal has examined valuation aspect in para 4 of its order bringing out the misrepresentation of the appellant before the authorities below. It is not necessary that Tribunal shall in verbatim reproduce the contention of appellants to deal with the same instead of an overall assessment thereof is made for its judgment.

7. … Once section 113 is applied, there is no further scope for Tribunal to substitute its decision against confiscation ordered. Therefore the MA(ROM) being misconceived and devoid of merit is liable to be dismissed."

Relying on the apex court decision in Honda Siel Power Products Ltd. - 2007-TIOL-211-SC-IT wherein law is laid down that in the guise of ROM application the appeal itself cannot be reviewed, the present applications were dismissed as being misconceived.

(See 2017-TIOL-4364-CESTAT-MUM)