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2014 (3) TMI 800 - AT - CustomsProject Import - Valuation - inclusion of value of certain costs and services forming part of Off-Shore Engineering/Technical Assistance Contract (OETAC) - Rule 9(1)(b)(iv) of the Customs Valuation Rules, 1988 - - miss-declaration of value of plant and machinery imported under Project Import Regulations Act, 1986 - Held that:- Other than the opinion of the consulting engineer, there is not much else provided by the appellants. While we agree that substance has to be preferred to form, in this case, we find that it is the appellant who is requiring the adjudicators to prefer form over substance. - Further it is also seen that the opinion of the expert consulting engineer to a specific question on the fact of use, is hypothetical. As submitted by the learned special counsel, references to equipment design and connected engineering work in the contract have not been reflected upon in the expert opinion. The analysis of the different contracts and the type of services rendered by KHIL as per OETAC would show that the submissions made by the learned special counsel for the Revenue regarding addition to be made in terms of Rule 9(1)(b)(iv) of Customs Valuation Rules have to be upheld and accepted. - Decided against the assessee. Issuance of SCN when assessments were provisional - Held that:- A question of res judicata may not arise in view of the fact that provisional assessments are resorted for specific purposes and once the assessee is able to specify the purpose for which provisional assessment was resorted to, the assessment can be finalized. Therefore, even if short-levy is disputed, notice issued, adjudicated, the finalization of provisional assessment or assessment process as per the document can be a separate subject and in both cases issues involved will be different. In the present self-assessment regime, there may be many occasions where the assessee may assess and pay higher duty and assessment be provisional. In our opinion, the conclusions reached by us above are more valid today than ever before especially in view of the complications involved in application of law to the facts and difficulties involved in making self-assessment. - Decided against the assessee. Regarding confiscation of goods and penalty penalty imposed by the Commissioner - Held that:- In this case what the appellant’s submission is whether action of the importer does not amount to defrauding revenue or not has to be based on the gravity of offence. It is submitted that in this case, the appellant had a bona fide belief. However, the submission of Revenue is contrary and we happen to agree with the submission of Revenue. - Confiscation and penalty confirmed.
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