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2019 (5) TMI 979 - AT - CustomsValuation of imported goods - dry containers - undervaluation - rejection of declared value - Rule 12(1) of the Customs (Determination of the value of Imported Goods) Rules, 2007 issued vide Notification No 94/2007-Cus (NT) dated 13.09.2007 - HELD THAT:- The issue of under valuation has been in depth examined by the Commissioner in his impugned order as is evident from the paras of order reproduce above. Nothing has been brought on record to show that the value determined by the Commissioner is erroneous. The value has been determined by the Commissioner on the basis of replacement cost agreed between Appellant 1 and Appellant 2. Since the replacement cost represent the intrinsic value of container, agreed upon between the lessor and lessee in the one way lease, the same is basis of value. Confiscation & redemption fine u/s 111 (d), (f) and (m) and Confiscation & Penalty u/s 112 (a) and (b)(iii) - HELD THAT:- The goods imported are not prohibited goods or subjected to any import restrictions in terms of Custom Act, 1962 or under any other law for time being in force, hence clause “d” to Section 111 is not applicable. Similarly the goods were assessed to duty by the Custom Authority and cleared on payment of duty assessed. There cannot be misdeclaration when there is no dispute about the that entries made in the Bill of Entry were on the basis of an invoice of foreign supplier without holding that the invoice was forged or manipulated. Since it is not so clause “m” of Section 111 will not be applicable. Similarly when the appellants have followed the practice in manner of making the declarations in Import Manifest, and existence of such practice is admitted by the Commissioner JNCH, Nhava Sheva, in his Public Notice, case of appellants cannot be covered under clause “f” of Section 111. In our view the order of Commissioner holding goods liable u/s 111 (d) (f) and (m) is bad in law and cannot be sustained. Since we have held that imported dry containers are not liable for confiscation u/s 111, penalties u/s 112 (a) and (b) (iii) cannot be sustained and hence they are set aside. Thus, while upholding the demand of duty and interest against Appellant 1, we set aside the order confiscating the goods, fine imposed and penalties imposed - appeal allowed in part.
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