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2011 (8) TMI 717 - AT - CustomsValidity of demand of duty under Section 28 - Appellant contended that department did not review the assessments made in the bills of entry at the time of importation before issuance of SCN under Section 129D - Held That:- The conention of the appellant is not legal - In view of hon'ble apex Court in UOI Vs. Jain Shudh Vanaspati (1991 -TMI - 43455 - SUPREME COURT OF INDIA), in case of Short levy or non-levy or short payment or non-payment or erroneous refund, show-cause notice under Section 28 for recovery of duty can be issued and the proceedings are sustainable. Competency of the ADG, DGCEI to issue show-cause - Officers of DGCEI have been appointed as officers of Customs vide Notification No.31/2000-Cus (NT) - Notification does not indicate any area of jurisdiction - Held That:- We do not find any merit in this argument. In case of Konia Trading Co. Vs. CC, Jaipur (2004 -TMI - 48997 - CESTAT, NEW DELHI) held that DRI officers can issue show-cause notices once they are appointed as Customs officers. In the instant case, the DGCEI officers have been appointed as Customs Officers under Section 4 of the Customs Act. The only objection of the appellant seems to be that in Notification No.31/2000, the area of jurisdiction of the DGCEI officers has not been specified. If no area is specified, it has to be presumed that the jurisdiction is all India. Valuation of goods - inclusion of value certain items - The appellant's contention for the exclusion of payments made to Nichimen, Japan, under the two agreements is that if this value is included in the assessable value of the goods under importation, then the assessable value per body will work to ₹ 49 to ₹ 51 lakh whereas the complete vehicle is being sold in the market at a price ranging from of ₹ 6 to 8 lakhs. Therefore, there is something fundamentally wrong in the value computed in the show-cause notice. - Held that:- Without these models, soft tools, soft jigs/fixtures, the BIWs and panels which were imported could not have been produced at all. Therefore, these costs have to be necessarily added to the value of the imported goods for the purpose of levy customs duty in terms of the provisions of Rule 9 (1) (b) (ii) and (iv) of the Customs Valuation Rules and we hold accordingly. Valuation of goods - inclusion of design and engineering charges - held that:- the considerations paid to M/s Nichimen in terms of the agreements dated 20-11-98 and 4-1-2000 shall be added to the price actually paid for the imported goods in terms of Rule 9 (1)(b) (ii) and Rule 9 (1) (b) (iv) of the Customs Valuation Rules,1988. Exclusion from valuation - income tax / TDS paid on behalf of foreign vendor - Merely, because the appellant is obliged to deduct the tax at source and pay to the exchequer on behalf of the foreign supplier, it does not mean that the tax is payable by the appellant buyer/importer or the tax is on the goods. Extended period of limitation - Held That:- The appellant/importer did not declare the various charges paid to HW, UK and Nichimen, Japan towards various services rendered. Thus, there is a willful mis-declaration made by the appellant with an intent to evade payment of appropriate customs duty. Therefore, the argument of the appellant the extended period of time could not be invoked is un sustainable. Confiscation and imposition of redemption fine in lieu of confiscation - Held That:- The goods were not available physically, no actual confiscation would have been possible. When the goods are not available for confiscation, imposition of fine under Section 125 of the Customs Act can not be made unless the goods had been previously released under bond. Penalty under Section 112 (a) - Held That:- Shri R.U. Prabhu was only an employee of the appellant and he did not stand to gain personally by making the wrong declarations. In as much as the appellant has been penalised, we are of the view that penalty on Sri. Prabhu is not warranted and accordingly we set aside the same.
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