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2019 (5) TMI 1775 - CESTAT NEW DELHIValuation of imported goods - different parts and accessories of mobile handsets, i.e. LCD panel, LCD Display, PCBA, Speakers, battery, LCD, Antennas, etc. alongwith IMEI stickers - mis-declaration of description of goods - rejection of transaction value - absolute confiscation of goods - quantum of penalty. Redetermination of transaction value - HELD THAT:- The transaction value as mentioned in Rule 3 is doubted or proposed to be rejected, the value has to be determined in accordance of Rule 4 to 9 of the CVR. Since the goods appeared to be of superior quality and from the documents were found to be meant for manufacturing the mobile sets of the brand not belonging to the appellants, the Government approved Chartered Engineer/ Valuer Report was sought by the Department. The perusal of his report dated 09.04.2018 shows that the approver has examined the representative samples of goods, the type, quality, physical appearance and usage, viz-a-viz, country of origin whereof was compared. In addition, the average selling price of each as applicable in India was also compared - when the transaction value of Rule 3 is proposed to be rejected, it is Rule 4 & Rule 5 which is to be invoked first, i.e., comparison with the value of identical or similar goods. The valuer’s report is absolutely silent about such comparison. At least there is no specific mention to that effect in the report. It is rather stated that Rule 7 has been invoked by the approver/valuer to arrive at the re-determined value. It stands clear that Rule 7 requires a specific procedure as has to be followed. The report dated 09.04.2018 is silent about proper application of this Rule. There is no mention of unit price at which the imported goods or identical or similar imported goods are sold. There is no whisper about deductions as to be made prior arriving at the re-determined value - Thus, the data on which is based the valuer’s report need to be re-examined and it has to be decided afresh as to whether Rules 4-7 CVR, 2007 have duly been complied with while re-determining the price. Hence, the matter need to be remanded back. Absolute Confiscation of Intercepted Goods - HELD THAT:- The Foreign Trade Regulation Rules, 1993, Rule 11 thereof speaks about declaration as to value and quality of imported goods - As per the import policy, the import of GSM mobile handsets without International Mobile Equipment Identity (IMEI) No., with all zeros IMEI, duplicate or fake IMEI was made prohibited. It is apparent from record that the subject import IMEI Nos. on the goods intercepted belong to the manufacturer, M/s. Shenzhen Yifang Communications Technology Co., China were with respect to the brand name “KGTEL”, whereas, the appellants were engaged in the manufacture of brands “Strawberry” and “Crona” - The original adjudicating authority had observed that even the original copies of those letters were not produced by the appellants. Thus, the clinching evidence has not been impressed upon by the original adjudicating authorities. Hence, the conclusion that appellants were not authorised to use the impugned IMEI No. for their own brands, i.e. “Strawberry” and “Crona” is opined to be based upon the presumption due to lack of details about IMEI Nos. in the letter referred to by the appellants. Also, it is the submission of the appellant that they were authorised to import from such companies who were the TAC holders of M/s. Shenzhen Yifang Communications Technology Co., China, the Company who had issued those letters - the adjudicating authorities below have absolutely ignored the said submission and have merely relied upon MSAI report. The issue of confiscation of goods with IMEI number is also opined to be re-examined and decided afresh by the Adjudicating Authority. Matter remanded to the adjudicating authorities below for appreciating the evidence with respect to data as is required to apply Rule 7 of CVR also w.r.t. goods having IMEI Nos./stickers and to denovo adjudicate the impugned show cause notice including the issue that of imposition of penalties - appeal allowed by way of remand.
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