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2024 (5) TMI 528 - CESTAT MUMBAISeeking re-export of goods - Absolute confiscation of goods subject to prohibition on import - breach of ‘intellectual property rights’ - Penalty u/s 112, 114AA Or 117 of Customs Act - furnished false declarations - enhancement of valuation - Cosmetic goods - Declaration of two lots of miscellaneous articles and one each of computer parts and accessories - Validity of notice - value’ of ‘identical’ and ‘similar’ goods - HELD THAT:- There is no finding that the value of the declared goods in the consignments of M/s Ghare Impex had been subjected to the requirements of rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 or that rule 3(4) therein was operable. It is clear that the declared value of the declared goods in the consignment of M/s Creative Sales and M/s Unique Impex could not have been less than any ‘conceivably’ actual value and, more particularly, as these were found to be ‘second hand’ upon examination. The value of declared goods have not been demonstrated as meriting re-valuation. We are also unable to fathom the discrimination in determination of the duty liability of M/s Ghare Impex, whose goods were almost entirely confiscated and ordered for destruction, while not effecting the same exercise for the other two importers similarly situated. The value of undeclared goods are not relevant to the proceedings except for imposition of penalty owing to absolute confiscation as well as to the only plea of appellants that goods may be allowed to be re-exported. There is no requirement for duty to be levied in either contingency. Nonetheless, the rigour of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 is not to be discarded merely because there is no intent to levy duty as the definition of ‘value’ in section 2 does not offer scope for such dilution. Furthermore, the notice, as well as the impugned order, is bereft of any discussion, in relation to the declared and undeclared goods, on the availability of ‘identical’ or ‘similar’ goods that was purportedly used as reference by the ‘approved valuer’ when the adjudicating authority had already recorded the inevitability of by-passing rule 4 and rule 5 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. It is inconceivable that such ‘prohibited goods’ are available in the market for an acceptable evaluation of price that the ‘approved valuer’ appears to have resorted to. It would appear that the reliance placed on the report of ‘valuer’ to the exclusion of the responsibility devolving on the ‘proper officer’ opting for ‘deductive value’ has rendered the valuation exercise to be untenable in its entirety and, in the absence of any factual narration in the notice, not amenable to fresh determination. Hence, the confiscation u/s 111(m) of Customs Act, 1962 for variation from declared value must be held to lack sanction of law as also the value arrived at by the adjudicating authority. Thus, the impugned order is modified to the extent that the goods absolutely confiscated therein are held to be liable for confiscation and, in acceptance of request for such by the importers, are permitted to be re-exported without being entailed by any other detriment u/s 125 of Customs Act, 1962. The goods permitted for re-export are, except for those in alleged breach of ‘intellectual property rights’, held as liable to confiscation supra but, in the absence of any evidence of any role played by any of the appellants in their import, recourse to section 112 of Customs Act, 1962 is not validated by law. The undeclared goods intended to be cleared for home consumption are, to the extent not absolutely confiscated, held as liable to confiscation u/s 111(l) of Customs Act, 1962 but permitted to be redeemed on payment of fine that erases the ‘margin of profit’ and subject to penalty on the importer to the extent provided for in section 112 of Customs Act, 1962; this will entail determination of value for assessment u/s 14 of Customs Act, 1962 which the ‘proper officer’ u/s 17 of Customs Act, 1962 shall discharge. Likewise, the declared goods in imports of M/s Creative Sales and M/s Unique Impex shall be subject to valuation for clearance and consequent fine and penalties for having been imported without appropriate licence. Consequently, the appeal is allowed to the extent as set out above.
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