TMI Blog2012 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... shok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri T. Viswanathan, Advocate, for the Appellant. Shri Premanand Das, Commissioner (AR), for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. The appeals and the stay applications are directed against Order-in-Original No. 97/2010/CAC/CC(I)/SHH, dated 23-11-2010 passed by the Commissioner of Customs (I), Mumbai. The appellants have also moved a miscellaneous application for raising an additional ground on the jurisdiction of the Directorate of Revenue Intelligence for issue of notice. As the issue raised is a legal one which can be raised at any point of time while hearing the appeal, the miscellaneous application is allowed. The stay applications are now taken up for consideration. 2. The facts arising for consideration in this case are as follows. Acting on intelligence that M/s. Chinmay Corporation, Sanand, Gujarat and M/s. Parth Marketing, Ahmedabad were resorting to misdeclaration and gross undervaluation of import of electronic goods, mainly car stereos, with an intent to evade payment of customs duty, the Directorate of Revenue Intelligence, Ahmedabad unit conducted an investigation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported were complete music systems such as DVD/CD players and not parts of music systems, they were liable to additional customs duty under Section 3 of the Customs Act, 1975 on the basis of maximum retail sale price at which such goods are sold in the Indian market. However no MRP was declared at the time of importation and therefore, based on the MRP of similar imported goods the duty liability was computed. On completion of investigation, show-cause notice dated 2-5-2008 was issued to the appellants and the same was adjudicated vide the impugned order wherein the assessable value of Rs. 5,20,21,659/- declared was enhanced to Rs. 20,31,09,758/- and a differential duty payable on account of enhancement value and levy of additional duty on MRP basis was determined at Rs. 5,17,74,811/-. The goods imported by M/s. Parth Marketing and M/s. Chinmay Corporation were held liable to confiscation under Section 111(m) of the Customs Act, 1962 and a redemption fine was imposed under Section 125 of the Customs Act in lieu of confiscation. Varying penalties were imposed on M/s. Parth Marketing and M/s. Chinmay Corporation under Section 114 A of the Customs Act and on Shri Sushil Agarwal unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of RSP under the Central Excise law in respect of imported goods. He relies on the decision of this Tribunal in the case of ABB Ltd. v. CCE reported in 2011 (272) E.L.T. 706 wherein this Tribunal held that there is no provision in the Customs Tariff Act, 1975, enabling the proper officer to determine the RSP if the same is not declared by the importer. The provisions of Central Excise (Determination of Retail Price of Excisable Goods) Rules, 2008 prescribing the manner of determination of RSP when the same is not declared cannot be made applicable to the levy of CVD under the Customs Tariff Act, 1975. The ld. advocate submits that in view of the above, and also taking into account the fact that the appellants have made a pre-deposit of about Rs. 1.5 crore during the investigation, the same be considered sufficient for the purpose of grant of stay at the interim stage. 4. The ld. AR for the revenue on the other hand strongly opposes the stay application and submits that M/s. Parth Marketing and M/s. Chinmay Corporation have been floated by Shri Sushil Agarwal and these companies imported car stereo and other electronic gadgets in split up condition - while M/s. Parth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the levy of addl. duty of customs, any reasonable means can be adopted to operationalise the provision of law. In the light of these submissions, the Id. AR prays for putting the appellant to terms. 5. We have carefully considered the rival submissions. 5.1 From the documentary evidence available on record and from the statements recorded from the proprietors of M/s. Parth Marketing and M/s. Chinmay Corporation and Shri Sushil Agarwal, it is clear that M/s. Parth Marketing and M/s. Chinmay Corporation are only front companies of Shri Sushil Agarwal and the entire transactions are managed by Shri Sushil Agarwal only and no one else. The proprietor of M/s. Parth Marketing and M/s. Chinmay Corporation are receiving only monthly consideration for renting/lending their names and the transactions are undertaken by Shri Sushil Agarwal. Further, from the email/correspondence with the foreign supplier, which were unearthed during the investigation, the goods under importation were disassembled and the brand names were removed so as to make it appear that they are unbranded goods and they are not complete goods but parts of car stereo. Thus the intention to evade duty by misdeclarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneously refunded in respect of goods imported are valid, irrespective of the fact that any specific assignment as proper officer was issued or not. It was therefore proposed to amend the Customs Act, 1962, retrospectively and to validate anything done or any action taken under the said Act in pursuance of the provisions of the said Act at all material times irrespective of issuance of any specific assignment on July, 2011. From the objects and reasons of the Customs (Amendment and Validation) Bill, 2011 as narrated above, it is seen that the amendment has been done to empower and validate the action taken by the Commissioner of Customs (Preventive), officers of DRI, etc., who have been investigating and issuing notices for short levy or non-levy in the past. The amendment has been given retrospective effect to validate the actions taken in the past right from the date on which the Customs Act came into force. If that be so, the argument that the amendment carried out in Section 28 is effective only from April, 2011 and not before, negates the very object and purpose of retrospective legislation. This Tribunal, in our humble view is not competent to go into this question and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to drawback, refund and exemption from duty shall, so far as may be, apply to the duty charged under this Section as they apply in relation to the duty leviable under that Act. The Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 provides method of determination of value in cases where the transaction value is rejected. Rule 7 of the said Rules provides for deductive value. Under Rule 7 if the goods being valued are identical or similar to goods sold in India in the condition as imported, on or about time at which the declaration for determination of value is presented, the value of the imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the greatest aggregate quantity to persons subject to deduction towards commission, cost of transportation and insurance and associated cost incurred in India and customs duty /tax payable in India by reason of importation or sale of goods. Therefore, the price at which the imported goods are sold in India can be adopted as a basis subject to suitable modifications for the purpose of determination of value under the Customs Valuation Rules. Adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the instant case, the assessing officer has adopted RSP of comparable goods as the basis for determination and computation of duty liability. Such a procedure adopted for operationalising the levy cannot be considered to be unreasonable. 5.7 If it is held that the assessing officer cannot adopt any reasonable procedure and he cannot determine the MRP, then the whole object of Section 3 of the Customs Tariff Act, 1975, for levy of addl. duty on the basis of RSP would be rendered ineffective and infructuous. In Balwant Singh v. Jagdish Singh [2010 (262) E.L.T. 50 (S.C.)], the Hon ble Apex Court quoted with approval the principle of statutory interpretation as under : It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind in order to ensure that the projected object is achieved. In other words, no provision can be treated to have been enacted purposelessly. Furthermore it is also a well settled canon of interpretative jurisprudence that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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