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2023 (10) TMI 759 - AT - CustomsDisposal of application filed under section 129B of Customs Act, 1994 - rectification of error apparent on record that came to be rejected - bar of limitation in section 28 of Customs Act, 1962 - acceptability of facts relating to the import and assessment under section 17 Customs Act, 1962 - Suppression / mis-representation or not - levy of penalty u/s 114A of CA - extended period of limitation. HELD THAT:- In the erstwhile framework wherein acceptance of ‘declared value’ as ‘transaction value’ could be jeopardized by the latitude of deviating circumstances, determination of consequent duty liability did not necessarily imply misdeclaration of value and it could well be the inexorable purpose of rule 4(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 that may have given rise to ‘short payment’ owing to the transactional circumstances having been ‘suppressed’ at the time of assessment with its own consequence. Had the circumstances which prevailed prior to 1998, depicted in the decision of the Hon’ble Supreme Court in EICHER TRACTORS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2000 (11) TMI 139 - SUPREME COURT], and in accord thereof, be found to have justified the invoking of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for re-determination of the assessable value by addition to the extent of concealed price of procurement, it would well have been within the scheme of law to confiscate the goods by resort to section 111 of Customs Act, 1962. The fresh determination would have been a consequence of non-compliance with section 14 of Customs Act, 1962 and rule 4 (2) of the said rules arising from deliberate misrepresentation of the ‘transaction value’ in filing bill of entry. Confiscation of goods - HELD THAT:- Section 111(m) of Customs Act, 1962 may be invoked only upon material particulars being misdeclared and this detriment is in addition to duty liability determined under section 28 of Customs Act, 1962. For such confiscation to be correct in law, it is necessary that the circumscribing circumstances must exist; the ‘value’ itself has not been established as ‘misdeclared’ even if the said ‘value’ was placed on record for assessment without making known the circumstances in which the same goods had been procured from the manufacturer at higher price - A finding on inapplicability of confiscation did not necessarily extend to ‘suppression/ misrepresentation’ deployed for enhancement of value for assessment. Levy of penalty u/s 114A of CA - HELD THAT:- The legislative intent of compartmentalization of the two is evident in the incorporation of section 114A in Customs Act, 1962 that empowered imposition of penalty in consequence of such ‘suppression/misrepresentation’ and explicitly excluding recourse to the penalty consequential to ‘misdeclaration’ in proceedings for recovery of ‘short paid’ duty - the submission of the appellant cannot be accepted that relief from confiscation amounts to relief from being subjected to the ‘extended period’ for recovery of duty under section 28 of Customs Act, 1962. Time limitation - HELD THAT:- As no new facts pertaining to circumstances in which the parallel transaction with manufacturer of the impugned goods was not tantamount to ‘suppression/misrepresentation’ is on record and the non-applicability of the re-determined value is not in dispute in these proceedings, there are no reason to set aside the demand on ground of limitation. Appeal dismissed.
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