Page 257 - ELT_1st September 2020_Vol 373_Part 5

2020 ] COMMR OF CUS., C. EX. & S.T., HYDERABAD-II v. G.M.K. PRODUCTS PVT. LTD. 695

value as per the DEPB schedule. The DEPB schedule has no co-
relation with any of the inputs. The credit which is received under
the DEPB scheme can be used towards payment of Customs duty
with respect to any imports whether or not they are related to the
inputs.
(iii) Commissioner (Appeals) has also erred in holding that under the
DEPB schemes, customs has no role which is incorrect as the
Hon’ble High Court of Andhra Pradesh had held in the case of
Shravani Imports Pvt. Ltd. v. ADG, DR.I, Chennai - Writ Petition No.
20446/2008 and 18256/2008 [2010 (252) E.L.T. 19 (A.P.)] that DEPB
is also a duty and the same has to be recovered under Section 28 of
the Customs Act, 1962.
(iv) It is on record that the exporter has issued two sets of invoices one
for the customs and another for the overseas customers giving dif-
ferent descriptions. The invoices submitted to the customs indicated
that the export goods were “cast iron castings machines (cylinder
liners)” whereas the invoices supplied to the overseas suppliers in-
dicated the description of goods as “cylinder liners/automotive lin-
ers”. The Commissioner (Appeals) has completely ignored this mis-
declaration. As there was a clear misdeclaration, the respondent
was not eligible for differential DEPB credits on such export goods
and were also liable for penalty.
(v) The various omissions and commissions by Shri Rama Krishna Pra-
sad, Managing Director of the respondent were not properly exam-
ined and appreciated by the Commissioner (Appeals).
In view of the above, it was prayed that it may be examined whether the Com-
missioner (Appeals) order is correct and proper and pass an appropriate order
under Section 129B of the Customs Act, 1962.
6. Learned DR reiterates the above submissions. He vociferously ar-
gues that the respondent has clearly misdeclared the nature of goods with an
intention to avail higher rate of DEPB credit. With respect to the same consign-
ment and the same products they gave the correct description in a separate set of
invoices sent to the overseas buyers and a wrong description in the invoices
submitted to Customs. The product numbers in both sets of invoices are exactly
the same. Productwise details of these are given in Para 5 of the show cause no-
tice. There cannot be a more blatant misdeclaration than this. Had the respond-
ent genuinely believed their goods to be of a different nature they would have
declared them so in their invoices which were sent to the buyers as well. The
very fact that they made two parallel sets of invoices one for the department giv-
ing wrong description and another for the buyer giving the correct description to
the buyer shows their intent. He would submit that the impugned order is com-
pletely silent on this aspect. The Commissioner (Appeals) has wrongly relied on
the letter of the DGFT which has nothing whatsoever to do with the DEPB credit.
He therefore prays that the impugned order may be set aside and the order of the
lower authority may be upheld.
7. Pre contra Learned Counsel for the respondent supports the im-
pugned order.
8. We have considered the arguments on both sides and perused the
records. It is not in doubt that the goods were declared in a particular manner in
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