TMI Blog2007 (3) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Entry for the same along with relevant documents like invoices and packing list issued by M/s. Swarovski. All these goods, after proper examination, as is clear from the remarks made in the Bills of Entry, were finally assessed by the proper officer and cleared on payment of duty. 4. At the time of import of sixteen consignment, Bill of Entry dated 4-9-95 was filed by them declaring the value of the goods as ATS 60 Per Kg, which was the value declared by them in respect of all the previous consignments. The said goods were also examined, value accepted and clearance made. However, on 11-10-95, the office premises of the said appellants were put to search and certain incriminating documents were recovered. Statements of Shri Satish Mehta was recorded on 11-10-95 wherein he disclosed that the goods were Stock-lot , as declared in the Bills of Entry, but the value declared at the rate of 60 ATS per Kg. was not correct value. He accordingly, requested the Customs Officers to give him some time to consult his records and disclosed the correct assessable value. In his second statement recorded on 12-10-95, he disclosed that though in respect of the initial importation, value was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, as also under Section 114A of the Customs Act, on all the notices. 7. The said show cause notices culminated into an order passed by the Commissioner, vide which he accepted the appellants stand that the goods imported were stock lot and as such, their value cannot be enhanced based upon the price list of M/s. Swarovski, which was meant for the prime quality goods. He, however, rejected the appellant s contention that the uniform price of 60 ATS Per Kg. declared by them was the correct assessable value and based upon the statement of Shri Satish B. Mehta, recorded on 12-10-95, enhanced the value on the basis of the disclosure of value made by him in the said statement. He, accordingly, confirmed the demand of Customs duty amounting to Rs. 2,62,61,129/- in terms of the sub-proviso to sub-section (1) of Section 28 of the Act, by invoking the longer period of limitation and dropped the confirmation of balance amount of duty as proposed in the notice. The amount of Rs. 1.5 crores already deposited by M/s. Mehta Trading House Pvt. Ltd., was ordered to be appropriated towards the confirmation of demand of duty. In addition, personal penalty of Rs. 2.50 crores was im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve out the value of stock lots prevalent during proceeding years, which he retracted later; (vii) Excepting one, the other six invoices referred to as evidence of value of contemporary imports do not relate to glass chatons. Even in the one Bill of Entry relating to glass chatons, it is found that the invoice does not show that it is for stock lot of glass chatons; (viii) While the investigating officers of SIIB have recorded the statement of the Docks Clerk of the CHA by name Shri S.R. Chavan, no attempt has been made to record the statements of any of the Docks Examiners and Appraisers associated with the examination or the Group Appraiser/Assistant Commissioner, who has allowed clearance, after seeing the samples accepting the declaration as stock lots; (ix) No representative samples have been retained by the Department either in the Docks or in the Appraising Group for each of the 16 consignments, which can be examined with the help of experts in the trade; (x) The documents seized from the indenters F.M. Chenoy Co. at the time of search on the 15th February 1996 (not cited in the show cause notice but brought out in para 35 of the defence final submissions) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the gocds in a mixed fashion to mislead the Customs and the same were being sorted out after importation and there is nothing on record to show that the goods were further being disposed of as mixed lot. However, we find that the Commissioner s finding on the above issue are based upon the evidence and legal jurisprudence. He has rightly observed that the fact of clearance of the goods as stock lot after thorough examination by the officers and in the absence of any allegations or evidence of collusion on the part of these officers will lead to only one inevitable conclusion that the goods were not prime quality, but were stock lot . We have seen the examination reports, which are to the clear effect that the goods have been found to be stock-lot. The said examination reports were not challenged by the revenue. Similarly by placing reference on the Tribunal s decision in the case of Kulbhushan Jain v. Commissioner - 1999 (111) E.L.T. 906 (T) = 1999 (33) RLT 648, he has rightly held that though Shri Terzka of Swarovski, who was the appropriate person to explain, came forward to depose and to stand cross-examination, but no steps were taken to cross-examine him. As such, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g., the same was increased marginally in each year and ultimately in 1994-95, the value stands disclosed as ATS 300 per Kg. The Commissioner has calculated the duty based upon the above disclosure of value made by Mehta, after rejecting his contention that the said statement was recorded under duress. While doing so, the Commissioner has observed that though there was a retraction immediately, the disclosure of values during each year is based upon the appellants own record, as consulted by him and, as such, the same cannot be discarded. 12. The appellants have relied upon certain decisions in support of their contention that the value stock lot goods cannot be compared with the value of prime-quality goods in the absence of any contemporaneous imports. As such, it is their case that transaction value should be adopted. In the case of M/s. Bansal Industries, 2002 (147) E.L.T. 967 (Chennai) and in the case of S.V. International v. Commissioner of Customs, Kolkata, 2004 (166) E.L.T. 405 (Tri. - Kolkata), value was not enhanced on the said grounds. Similarly, in the case of Multi Trade Overseas, 2004 (172) E.L.T. 397 (Del.), the Tribunal held that where consignments constituted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignment on the basis of the weighted average value for all the sizes on the ground that there is no such provision of law available either under the Act or under the Rules made thereunder. The Customs Valuation (Determination of Imported Goods) Rules 1988 provide for various method to be adopted for the purposes of determination of value of the imported consignments in the situation of rejection of transaction value and there is no such methods provided under the said Rules for enhancing the value on the basis of weighted average. The Commissioner has adopted the residuary Rule 8 and has rightly passed his decision on the basis of the value disclosed in the statement of Mehta. 15. In view of the foregoing, we find that the confirmation of demand by the Commissioner of Customs (Adjudication) was in accordance with the law. Similarly, we find that the impugned order dropping the demand of duty against them is also based upon sound, legal principles and on appreciation of evidence on record and no merits are found in the revenue s appeal to upset the said part of his order. 16. As regards the penalty, having held that M/s. Mehta Trading House Pvt. Ltd., indulged in under invoici ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
