JUDGMENT
K.K. Usha, J. (President)
1. When this petition for stay came up for hearing it was agreed by both sides that the appeal itself can be disposed of, We, therefore proceed to dispose of the appeal.
2. The appellant is aggrieved by the order passed by the Commissioner of Customs (ICD), Tughlakabad, New Delhi dated 2.5.2002. The Shipping Bill Nos. 18158 and 18159 dated 27.7.99 were filed by the appellant for export of 45,000 pairs each of ladies chappals showing the FOB value at Rs. 32,60,862 and Rs. 33,98,063 respectively under claim for DEPB benefit at the rate of 20% at FOB. On examination of the goods it appeared that the declared market value was on the higher side. The export was allowed provisionally after drawal of samples for market enquiry to check the correctness of declared present market value. On market enquiry it was found that the value per pair was only Rs. 15 and Rs. 13 as against the declared value of Rs. 75.51 and Rs. 71. A show cause notice dated 22:10.99 was issued which was followed by a corrigendum dated 4.1.2000. The case was adjudicated initially under Order-in-Original No. BKG/CC/ICD/TKD/15/2000 dated 21/22.2.2000. the adjudicating authority held that the price determined during the market enquiry was correct and accordingly re-fixed the value of the goods. Apart from reducing the value of the goods for DEPB purpose and restricting the benefit of DEPB a penalty of Rs. 5 Lakhs was imposed under Section 114(i) of the Customs Act, 1962. The party filed an appeal before this Tribunal. By Order dated 12.7.2000 this Tribunal allowed the appeal and remanded the matter for fresh consideration by the Commissioner after affording reasonable opportunity to the appellant to make their submission. The Commissioner was also directed to furnish a copy of the market enquiry report to the appellant before the date of personal hearing. Thereafter the present order dated 2.5.2002 is issued.
3. The main contention in this appeal is that the appellant did not receive any notice for personal hearing and therefore, the order was passed in violation of the principles of natural justice. It is also alleged that the Commissioner did not furnish a copy of the market enquiry report to the appellant and this violated the direction given by this Tribunal. Certain contentions are raised against the market enquiry report also.
4. From the order of the Commissioner it is seen that the copy of the market enquiry report was supplied to the exporter under letter dated 18.12.2001 and notice for personal hearing on 22.11.01, 22.2.2002 and 8.4.2002 were sent to the party but they failed to appear in person or make any written, submission. After referring to the market enquiry report the Commissioner took the view that since no challenge is made by the appellant regarding market enquiry report, it has to be taken that the noticee has no further objection in the matter. Under these circumstances the appeal was dismissed.
5. Since the appellant contended before us that it did not receive any notice for personal hearing and it was not supplied with the market enquiry report, we directed the Department Representative to produce the original file in order to examine whether the above contentions are correct. Learned Counsel for the appellant also very fairly submitted that if the allegations are factually incorrect then the appellant has no case. Learned Departmental Representative produced before us photocopy of the dispatch register for the relevant period. From the above we find that notice had been sent for personal hearing on three days as mentioned in the order of the Commissioner and that the copy of the market enquiry report had been sent to the party under letter dated 18.12.2001. The case put forward by the appellant is rather curious. Even in the earlier appeal before this Tribunal they were taking the contention that the notice for hearing is not being received by them. At the same time it is admitted that they have received the copy of the order. It is also sent in the same address. In the present proceedings also the same contention is raised. According to us there is no bona fide in the contentions raised by the appellant that the order has been issued in violation of the principles of natural justice and that they were not provided with a copy of the market enquiry report. Since no objections were raised by the appellant before the Commissioner regarding market enquiry the Commissioner is fully justified in proceeding to assess the assessable value on the basis of the market enquiry report.
6. In the result, the appeal stands dismissed.