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M/s JMD OILS PVT LTD, SHRI KISHAN KUMAR, SHRI GULSHAN KUMAR, SHRI NARESH KUMAR Versus COMMISSIONER OF CUSTOMS

Valuation of goods - Enhancement in valuation of goods - Inclusion of value of the mixed acid oils and mixed fatty acid imported - DIFFERENCE OF OPINION

Whether there was deliberate mis-declaration of description and value of imports proved from investigation result, report of CRCL and various evidence gathered by investigation as well uncontroverted adjudication finings as recorded by Technical Member and adjudication should be upheld? OR

Whether merely relying on the dec .....

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iyanka, Adv. For the Respondent : Shri P K Sharma, AR PER : Archana Wadhwa All three appeals are being disposed of by a common order as they arise out of the same impugned order passed by lower authorities vide which the value of the mixed acid oils and mixed fatty acid imported by M/s. JMD Oils Pvt. Ltd. stands enhanced with consequential confirmation of demands of duty and penalties of varying amounts stand imposed upon all the appellants. 2. After hearing both sides for sometime, we find that .....

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RPO etc. The price declared by the appellant was enhanced by the assessing officer to US$ 336.25 in respect of mixed acid oils and to US$ 415.5 in respect of mixed fatty acid. The appellant accepted the said enhanced value and cleared the same on payment of duty. 4. However, subsequently based upon certain investigation, proceedings were initiated for enhancement of assessable value resulting in passing of impugned order vide which the assessable value of the mixed acid oils as well as mixed fat .....

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CC New Delhi [2011 (274) ELT 449 (Tri-Del)] took note of the said two statement made by Indenting agents and also took note of the fact that importer accepted the enhanced value so as to get release of the goods and to avoid further demmurage charges and held that as there was no valid & legal evidence indicating that the price reflected in invoice was not correct declared transaction value, the same cannot be discarded. 6. Learned advocate has placed strong reliance on the said decision of .....

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the finding of Commissioner in the earlier impugned order. 7. As Tribunal in the earlier order has already considered the same very-evidence, which is available in the present case and stands reproduced by the Commissioner in para 29.3 of this present impugned order, we are of the view that earlier order of the Tribunal in the case of H.K. International is fully applicable to the facts of the present case. As such, without going into further elaborate discussion, we, in the light of proceeding o .....

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and they have not received any intimation from the Hon'ble High Court as regards filing of appeal by the Revenue. Not only that he also draws our attention to an order of Commissioner (Appeals) dated 4.11.10 wherein the original adjudicating authority, by relying upon the same very statement of two indenting agents namely Shri Rakesh Kumar and Shri Anil Kumar Arora has confirmed the demand, but appellate authority set aside the same by observing that there is no evidence of rejection of tra .....

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ein order passed by the Commissioner of Customs vide his Order-in-Original no. 23/2009 dated 17.3.2009 confirming demand of duty and imposition of penalties has been set aside. I do not agree with these decision and findings recorded by the Id. Judicial Member for the reasons stated below. 10. Basis of the order recorded by Member (Judicial) was relying on Tribunal's earlier order in the case of M/s HLK. International Vs. CC New Delhi 2011 (274) E.L.T. 449 (Tri.-Del) wherein adjudication pro .....

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f DRI. Shri Rakesh Kumar, an indenting agent for Palm Fatty Acid Distillate for various importers in India and several Malaysian firms, in his voluntary statement dated 03.11.2006, inter-alia stated that the prevailing prices of PFAD (Palm Fatty Acid Distillate) was around USD 340 PMT in the Malaysia; that the landed cost of PFAD in India was around USD 440 PMT which included USD ) PMT for the goods; USD 50 PMT for drumming and USD 50 PMT as freight charges; that the local importers and traders .....

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ed that the prevailing price of PFAD (Palm Fatty Acid Distillate) which at the time of import was being declared as Mixed Fatty Acid (MFA) by the Indian importers was around USD 320 to 350 PMT in Malaysia; that the landed cost of PFAD in India was around USD 430 to 440 PMT; that on the request of Indian importers in India, he used to ask to the supplier in Malaysia to issue invoices in the range of USD 210 to 220 PMT for PFAD and USD 180 to 190 PMT for MFA; that they (supplier's) used to iss .....

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12.01.2007 and 563904 dated 12.01.2007 where the goods imported were declared as Mixed Fatty Acid @ USD 190 to 210 PMT CIF Nhava Sheva as depicted in the said para. Containers covered by the B/Es were physically examined and samples drawn. When samples were sent to CRCL, result thereof went against appellant and such result has been vividly described by Id. Adjudicating authority in Para -6 of his order,. Last column of the table appearing under that Para proved conduct of the appellant misdecl .....

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2267132 336.25 190 3 540762 09.10.06 Mixed Acid Oil 72.52 MT IALU 2269990 IALU 2268822 IALU 2274907 IALU 2269006 336.25 190 4 563848 12.01.07 Mixed Fatty Aad 53.684 MT MLCU2929713 ZIMU2479777 UESU2206241 415.5 210 5 563904 12.01.07 Mixed Fatty Acid 90.65MT CAXU6068423 CAXU6174908 CAXU6594372 TNBU3497800 MOGU2522841 14. It was proved by technical report that the goods imported were not PFAD of MFA/MAO but were Palm Stearin and that remained uncontroverted. Appellant waived service of show cause n .....

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er into negotiation with its foreign suppliers to procure invoice showing wrong description of the goods and their lower value than the actual value and to pay suppressed part of actual value in advance through hawala. (iii) The above negotiations used to be communicated via e-mails/fax between the buyer and foreign supplier as was evident from the enquires with the Indian Indenters, namely, Sh. Rakesh Kumar and Sh. Anil Kumar Arora. Facts stated by them clearly indicated the modus operandi of p .....

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e Palm Stearin knowing fully well about the condition and that too without an approval or authorization from the Secretariat of Industrial Approvals of the Department of Insdustrial Development, Govt. of India, DGTD registration for the manufacture of Fatty Acids or registration with Direcorate of Vanaspati, Vegetables Oils and Fats. (v) Sh. Gulsahan Kumar, authorized representative of the company and his two brothers Sh, Kishan kumar and Sh. Naresh Kumar, both the Directors of M/s JMD Oils Pvt. .....

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by the Malaysia Palm Oil Board, the average price of Palm Fatty Acid Distillate during the year 2006 was USD 345 PMT (FOB). If valuation of the same is conducted as per the valuation Rules, 1988 then 20% of the FOB is to be added as Freight which comes to USD 69 and the total comes to USD 414 and insurance @ 1,125% comes to USD 3.88 and this the CIF value comes to USD 417.88 PMT, Therefore, the average actual price in USD of Palm Fatty acid distillate comes to USD 420 PMT (CIF). (vii) M/s JMD O .....

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rted through their company. However, goods could not be cleared as the same were seized. (viii) Test reports of the 54 samples drawn from the goods imported vide bills of entry No. 54.653 dated 09.10.2006, 541277 dated 10.10.2006, 540762 dated 09.10.2006, 563848 dated 12.01.2007 and 563904 dated 12.01.2007, indicated that 33 samples were of Palm Stearin, I sample of Refined Palm Oil, 14 Samples of Fatty Acid and 6 samples of palm Stearin composed of Triglycerides (Esters) which leads to the reas .....

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arin under bills of entry Nos. 540653 dated 09.10.2006, 541277 dated 10.10.2006, 540762 dated 09.10.2006, 563848 dated 12.01.2007 and 563904 dated 12.01.2007 540661 dated 09.10.2006 and 542500 dated 13.10.2006 which was restricted for import and could not be imported without industrial license or an approval or authorization from the Secretariat of Industrial Approvals of the Department of Industries development, Govt of India or DGTD registration for manufacture of Fatty Acid or registration wi .....

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that his company M/s JMD Oils Pvt. Ltd. Delhi imported and traded Palm Fatty Acid Distillate, Palm Stearin and Palm Fatty Acid by Mis-declaring them as Mixed Fatty Acid. It. is evident that it was he who negotiated and contracted the description and value of the imported goods, i.e. Palm Fatty Acid Distillate, Palm Fatty Acid and Palm Stearin in the range of USD 400 PMT to US$ 450 PMT (CIF) and that on his direction his foreign supplier issued the invoices for value which was about 40% to 50% l .....

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h Rakesh Kumar and Shri Anil Kumar Arora, in their voluntary statement dated 03.11.2006 and 06.11.2006 respectively. (xii) M/s JMD Oils Pvt. Ltd. had imported the goods covered by bills of entry Nos. 540653 dated 09.10.2006, 541277 dated 10.10.2006, 540762 dated 09.10.2006, 563848 dated 12.01.2007 and 563904 dated 12.01.2007 by suppressing their actual description and transaction value with the intention to bypass the restriction on import of Palm Stearin without proper authority and to evade cu .....

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etin of Palm Fatty Acid Distillate (FOB USD/Tonne) and issued by the Malaysian Palm Oil Board, Indian indenters and Shri Gulshan Kumar (authorized representative of the company) also confirmed the same. The actual transaction value of the goods, i.e. Palm Stearin ana Palm Fatty Acid & Palm Fatty Acid Distillate covered by bills of entry Nos. 540653 dated 09.10.2006, 541277 dated 10.10.2006, 540762 dated 09.10.2006, 563848 dated 12.01.2007 and 563904 dated 12.01.2007 is correctly determinable .....

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in respect of the imported goods; imported Palm Stearin, Palm Fatty Acid and Palm Fatty Acid Distillate by mis-declaring their description and value to evade customs duty and that he had complete knowledge of price and description of the imported goods which he attempted to clear from Customs by mis-declaration of actual description and actual value." [Emphasis supplied] 15. I have examined the records and the matter under appeal in detail Result of test report given by CRCL as depicted in .....

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No. Report C No. & Date FFA fas oleic.Acid /Palmitic Acid) Melting Point Gist of Report 14 A 35CRCU2006-CL-5749 SIIB dt. 08.02.07 1.49% by weight as P.A. 53/C The sample appears to be Palm Stearin. 14 B 35CRCL/2006-CL-5743 SIIB dt. 08.02.07 0.06% by wt as P.A. 54/C The sample appears to be Palm Stearin. 14 C 35CRCL/2006/CL-5744 SIIB dt. 08.02.07 0.12% by wt as P.A. 54/C The sample appears to be Palm Stearin. 2. Container No. IALU 2273407 Sample No. Report C. No. & Date FFA (as oleic Aci .....

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oleic Acid /Palmitic Acid) Melting Point Gist of Report 06 A 35CRCL/2006/CL-5406 SIIB dt. 12.03.2007 70.9% by wt as PA 76.5% by wt as OA 44/C The sample is having characteristics of Fatty acid whether it is edible or not is not clear as it is having such a high FFA 06 B 35CRCL/2006/CL-54Q7 SIIB dt. 14.02.2007 0.31% by wt as OA 02.8% by wt as PA 54/ C The sample appears to Palm Stearin. 06 C 35CRCL/2006/CL-5408 SIIB dt. 14.02.2007 1.5% by wt as P.A 1.71% by wt as OA, 54/C The sample appears to P .....

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7 C 35CRCL/2006/CL-5405 SIIB dt. 20.02.2007 0.25 as O.A. 0.22 as P.A. 54 degree / C The sample appears to be Palm Stearin. 5. Container No. IALU 2271195 Sample No. Report C. No. & Date FFA (as oleic Acid / Palmitic Acid) Melting Point Gist of Report 16A 35CRCL/2006/CL-5748 SIIB dt. 08.02.2007 0.08% by weight as PA. 53/ C The sample appears to be Palm Stearin 16B 35CRCL/2006/CL-5749 SIIB dt. 08.02.2007 0.06% as P.A. 55 /C The sample appears to be Palm Stearin. 17C 35CRCL/2006/CL-5750 SIIB dt. .....

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0.05% as P.A. 54/C The Sample appears to be Palm Stearin. BILL OF ENTRY NO. 5540762 dt 09.10.2006 1. Container No. IALU 2269990 Sample. No. Report C. No. & Date FFA (as oleic Acid / Palmitic Acid) Melting Point Gist of Report 10 A 35CRCU2006/CL-5730 SIIB dt. 12.01.2007 The sample appears to be Palm Stearin. 10 B 35CRCU20G6/CL-5731 SIIB dt. 12.01.2007 0.07% as P.A. 53/C The sample appears to be Palm Stearin. 10 C 35CRCU2006/CL-5732 SIIB dt 12.01.2007 0.06% as P.A 53/C The sample appears to be .....

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C. No. & Date FFA (as oleic Acid / Pa(miticAcid) Melting Point Gist of Report 12 A 35CRCL/2006/CL-5736 SIIB dt. 08.02.07 0.07% by weight as P.A. 55/ C The sample appears to be Palm Stearin 12 B 35CRCL/2006/CL-5737 SIIB dt. 08.02.07 0.07% as P.A. 55/C The sample appears to be Palm Stearin 12 C 35CRCL/2006/CL-5738 SIIB dt. 08.02.07 68.54% as P.A. 46/C The sample is having charactristics of Fatty Acid, whether is edibleor not is not clear as it is having such a high FFA 4. Container No. IALU 22 .....

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No. Report C. No. & Date FFA (as oleic Acid / Pa(miticAcid) Melting Point Gist of Report 49 A 35CRCL/2006/CL-6212 SIIB dt. 26.01.2007 0.49% by weight as P.A. Not Mentioned The sample appears to be Palm Stearin composed of Triglycerides of Fatty Acid (Esters) 49 B 35CRCL/2006/CL-6213 SIIB dt. 26.01.2007 91.6% as P.A. 100.9% as O.A. Not Mentioned The sample is having characteristics of Fatty Acid, whether it is edible or not is not clear as it is having such a high FFA. 49 C 35CRCL/2006/CL-621 .....

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cid, whether it is edible or not is not clear as it is having such a high FFA. 50 C 35CRCL/2006/CL-6232 SIIB dt. 27.07.2007 85.97% as P.A. Not mentioned The sample is having characteristics of Fatty Acid, whether it is edible or not is not clear as it is having such a high FFA. 2. Container No. UESU 2206241 Sample No. Report C. No. & Date FFA (as oleic Acid / Pa(miticAcid) Melting Point Gist of Report 51 A 35CRCL/2006/CL-6233 SIIB dt. 05.07.2007 0.07% by weight as P.A. 52/C The sample appear .....

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. Report C. No. & Date FFA (as oleic Acid / Pa(miticAcid) Melting Point Gist of Report 44 A 35 CUS./CRC/06 CL 6224 SIIB dt. 04.07.2007 0.43% by weight as P.A. 53/C The sample appears to be Palm Stearin 44 B 35 CUS./CRC/06 CL 6225 SIIB dt. 04.07.2007 0.05% as P.A. 52/C The sample appears to be Palm Stearin 44 C 35 CUS./CRC/06 CL 6226 SIIB dt. 11.06.2007 58.74% as O.A. Not mentioned The sample is having characteristics of Fatty Acid, whether it is edible or not is not clear as it is having suc .....

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dt. 04.07.2007 76.67% as P.A. 52/C The sample is having characteristics of Fatty Acid, whether it is edible or not is not clear as it is having such a high FFA. 3. Container No. CAUX 6594372 Sample No. Report C. No. & Date FFA (as oleic Acid / Pa(miticAcid) Melting Point Gist of Report 46 A 35CRCL/2007/CL-6228 SIIB dt. 11.07.2007 0.47/0.43% by weight as P.A. 52/C The sample appears to be Palm Stearin 46 B 35CRCL/2007/CL-6228 SIIB dt. 11.07.2007 0.53% as P.A. 52/C The sample appears to be Pa .....

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d (Esters) 47 B 35CRCL/2007/CL-6216 SIIB dt. 26.01.2007 0.68% as P.A. Not Mentioned The sample appears to be Palm Stearin compsed of Triglycerides of Fatty Acid (Esters) 47 C 35CRCL/2007/CL-6217 SIIB dt. 26.11.2007 98.1% as P.A. 108.1% as O.A. Not Mentioned The sample is having characteristics of Fatty Acid, whether it is edible or not is not clear as it is having such a high FFA. 5. Container No. MOGU 2522841 Sample No. Report C. No. & Date FFA (as oleic Acid / Pa(miticAcid) Melting Point G .....

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Palm stearin imported by the appellant was not freely importable without appropriate licence/permission. Import of such goods is regulated under law and specific permission of Ministry/DGFD is required in terms of Public Noticee No. 14/97-02, Dated 06.6.1997. M/s JMD has no license to import crude Palm Stearin or facility to split the same into fatty Acids and glycerols, Such material fact clearly established deliberate mis-declaration and Revenue was defrauded. Such material fact and aforesaid .....

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which confirms that he was aware of the true character and description of the goods imported but mis-declared to cause loss to Revenue with the conscious knowledge of the appellant. His statement in so far as that is relevant is extracted below: "Sh. Gulshan Kumar, authorized representative of M/s JMD Oils Pvt. Ltd., Delhi had finalized the contract of purchase, approved the quality and prices of the said goods so imported by his company M/s JMD Oils Pvt. Ltd. which confirmed that he was a .....

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eign supplier issued the invoices for value which was about 40% to 50% less than the actual value of the so imported goods. He also submitted the invoices of less value to customs for clearance of goods imported by him with willful intent to evade customs duty. Facts above confirmed that he had full know/edge of the actual prices and description of the goods but he illegally imported the said goods by way of mis-declaration of their correct description and actual value. 18. From the above facts, .....

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ts he did not result the same. Para 25(x) of Order-in-Original clearly establishes fraudulent conduct of the appellant by mis-declaration and under valuation. Ld. Adjudicating Authority recorded as under to demonstrate mischief of the importer as under:- Sh. Gulshan Kumar, authorized representative of M/s JMD Oils Pvt. Ltd., Delhi had finalized the contract of purchase, approved the quality and prices of the said goods so imported by his company M/s JMD Oils Pvt. Ltd. which confirmed that he was .....

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oreign supplier issued the invoices for value which was about 40% to 50% less than the actual value of the so imported goods. He also submitted the invoices of less value to customs for clearance of goods imported by him with willful intent to evade customs duty. Facts above confirmed that he had full knowledge of the actual prices and description of the goods but he illegally imported the said goods by way of mis-declaration of their correct description and actual value. 19. Present case establ .....

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ed that consignments were purchased at a negotiated unit prices. But on the basis of some information the officers examined the consignments on 21.12.2006, 26.11.2006, 28.12.2006, 24.01.2007 and 29.01.2007, and drew representative samples from the consignments for testing and seized the same under Section 110 of the Customs Act, 1962- CRCL results established the imported goods were fatty acids, Shri Raghuver Day Prop, Of M/s H.K. International, accepted undervaluation and paid entire duty on en .....

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under section 114A of the Act ibid . But on appeal, adjudication proceeding was dropped against M/s H.K. International based on contention that evidences produced by Revenue were generic in nature and prices based on bulletin were not acceptable without examining the mis-declaration of the product, gravity of misdeclaration, conduct of importer causing evasion. 20. It is relevant to briefly describe the facts in the present case for proper decision. There was specific intelligence received that .....

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hich demonstrated deliberate and well designed mis-declaration of the imports. 21. Examination made by commissioner in the present case shows his application of mind and testing of evidence minutely vis-a-vis intelligence, evidence on record, statement recorded, result of test reports and under valuation as well as violation of import regulation/guidelines. He has rightly held violations of Section 14 of Customs Act, Section 111(d) and (m) of Customs Act, 1962. Section 28 read with Section 28A o .....

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bound to be dismissed. 23. When there was deliberate mis-declaration of description and value of goods proved from technical report, malafide of appellant is established. Entire design of appellant was to defraud Revenue. Once fraud surfaces, that nullifies every solemn act and appellant is bound to restore the loss caused to Revenue. Revenue has established fraudulent mis-declaration that should meet the consequence of levy of duty, interest, confiscation and penalties. 24. Accordingly, I uphol .....

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unal in the case of H.K. International (supra) irrespective of peculiar facts of each case tested on the basis of law, adjudication is to be set aside as recorded by Judicial Member? Archana Wadhwa, J. Manmohan Singh , J. In view of above, Registry is directed to put up this Difference of Opinion matter before Hon'ble President for constituting third Member Bench for hearing Difference of Opinion matter. ORDER Per Ashok Jindal: 26. Heard the parties. The following difference of opinion has b .....

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of law, adjudication is to be set aside as recorded by Judicial Member. 27. The learned Counsel for the appellants submits that para 29.3 of the impugned order have alleged against the appellant. The grounds were mis-declaration and under valuation of imported goods, therefore, the, value was enhanced. 28. In the case of H K International (supra) the grounds are identical. Therefore, the decision of this Tribunal in the case of H K International is to be followed. He further submits that Hon' .....

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s admitted under invoicing. In fact, in his statement he has admitted that similar goods are being under invoiced by co-Noticee but the appellant has paid the duty on determined value at the rate of 420 $ PMT only to avoid incurring demurrage, detention and other incidental costs. He further submits that Hon'ble Member (Technical) failed to appreciate that in the case of H K International (supra) also the proprietor of imported firm has admitted to pay the duty at calculated value of ₹ .....

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consignment were essentially in the nature of mixed lot of fatty acids and fatty acid oils and not palm styrene. The Hon'ble Member (Technical) has also fell in error in relying on the statement of Shri Anil Kumar Arora and Shri Rakesh Kumar without appreciating the fact that the appellant have not imported any consignment through these intenders. He further submits that Hon'ble Member (Technical) also failed to appreciate that in the impugned order in para 29.4(a) there was a general i .....

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of under-valuation and relying on the statement of Shri Gulshan Arora, the authorized representative who admitted that the goods have been imported and the market price of the imported goods is much higher than the declared value. He further submits that all the test report have been admitted by the appellants which shows that it is a palm styrene, therefore, the appellant has violated the condition of Import Policy. Therefore, the enhancement is proper. 30. I have perused the record and find t .....

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authorized representative Shri Gulshan Kumar have mis-declared the description and value of the imported goods. In support of these allegations, following evidences have been relied upon: (a) There was general intelligence that the importers of 'PFAD' and Palm Acid Oil' were mius-declaring the description and value of the imported goods and were evading payment of custom duty. (b) Shri Rakesh Kumar, an indenting agent for Palm Fatty Acid Distillate for various importers in India and .....

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FAD; that accordingly, he contacted the suppliers in Malaysia to issue invoices in the range of US S 210; and that the suppliers agreed on invoicing those goods at that rate with the condition that the difference of invoice rate and actual rate would be sent to them in advance. (c) Shri Anil Kumar Arora, the other indenting agent in his voluntary statement dated 6.11.2006, inter-alia, stated that the prevailing price of PFAD (Palm Fatty Acid Distillate) which at the time of import was being decl .....

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y the importer, were one and the same thing, that he received USS 3 to 5 PMT as commission for the deals brokered by him. (d) As per the monthly Export Price Bulletin of Palm Fatty Acid Distillate (FOB) USS /Tonne) issued by the Malaysia Palm Oil Board, the average price of Palm Fatty Acid Distillate during the year 2006 was USS 345 PMT (FOB). If valuation of the same is conducted as per the valuation Rules, 1988 then 20% of the FOB is to be added as freight which comes to USS 69 and the total c .....

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l test and analysis, CRCL in their test reports reported that the goods covered by the above bills of entry were having the characteristics of Palm Stearin / Fatty Acid / Refined Palm Oil / Palm Stearin composed of Triglycerides of Fatty Acid (Esters). (f) Sh. Sh. Gulshan Kumar, authorized representative of M/s. JMD Oils Pvt. Ltd. in his voluntary statements dated 13.12.2006, 29.1.2007, 06.03.2007, 05.4.2007, 25.5.2007 and 30.11.2007 recorded under section 108 of the Customs Act, 1962 has inter .....

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of the subject goods in the market was USD 340 PMT one the minimum side and therefore, he realized that the declared value of USD 190 PMT was on extremely lower side; that he was ready to accept all conditions and value imposed for the provisional clearance of the subject goods; that though they have declared the subject goods as Mixed Fatty Acid, Mixed Acid Oil, however, they would obey the reports of the CRCL as and when they are received; that their company was engaged in the manufacture of e .....

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l, there was a shortage of Fatty Acid and Acid Oil in the market and that was why the demand of subject goods was raised; that they have imported these goods from Malaysia and Indonesia but no body from their company has ever visited these countries; that all negotiations including the description of oil was conveyed by the concerned supplier on telephone in all cases; that payment were made through bank on receipt of the documents and they were banking with Indian Overseas Bank, Rajouri Garden; .....

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this material was fine quality of Mixed Fatty Acid and Mixed Acid Oil and its value in international market was around 425 USD PMT; that they were not aware about the restrictions on the import of Crude Palm Stearin imposed by the Govt, of India; that he did not know any process by which the subject goods could be used in the manufacture of Vanaspati Ghee because the melting point recommended for Vanaspati Ghee is 41.5/C whereas the Melting Point of the subject goods was 50-60/C and it could not .....

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eed with the test reports and is ready to pay duty on the value derived at USD 420 PMT." 31. I have also perused the order of this Tribunal in the case of H K International (supra) wherein para 5 of the said order is relevant which records the evidence to allege under-valuation. Same is reproduced herein as under: "5. After going through the order of the Commissioner we find that he has basically relied upon the following evidences. "(a) There was general intelligence that the imp .....

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$ 440 PMT which included USS 340 PMT for the goods, US$ 50 PMT for drumming and US$ 50 PMT as freight charges; that the local importers and traders asked him to arrange the invoices at price in the range of US$ 180 PMT for mixed acid oil and US$ 210 PMT for PFAD; that accordingly, he contacted the suppliers in Malaysia to issue invoices in the range of USS 210; and that the suppliers agreed on invoicing those goods at that rate with the condition that the difference of invoice rate and actual ra .....

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ers in Malaysia to issue invoices in the range of US$ 210 to 220 PMT for PFAD and USS 180 to 190 PMT for MFA; that the suppliers used to issue invoices for the consignments on these prices; that the PFAD and the mixed fatty acid which were being so declared by the importer, were one and the same thing; that he received USS 3 to 5 PMT as commission for the deals brokered by him. (d) As per the monthly export price bulletin of Palm Fatty Acid Distillate (FOB) USS/TONNE) issued by the Malaysia Palm .....

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drawn from the containers imported under bill of entry No. 540998 dated 10-10-2006 and were sent to Central Revenue Control Laboratory (CRCL), New Delhi for chemical test and analysis. CRCL in their test reports reported that the goods covered by the above bill of entry were having the characteristics of Fatty Acid. (f) Shri Raghuvar Dayal, Proprietor of M/s. HK International in his voluntarily statement dated 26-12-2006 recorded under Section 108 of the Customs Act, 1962 has inter alia stated t .....

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enhanced assessed value @US$ 420 PMT." 32. I have seen that the allegations made against the appellants from (a) to (f) in para 30 & 31 herein above are identical apart from the allegation (g) in para 29.3 of the impugned order against the appellants is that Shri Gulshan Arora stated that these materials was of fine quality of mixed fatty acid and mixed acid oil and its value in international market was around 425 USD PMT and they were unaware about the restrictions of import of crude p .....

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ubject goods for edible purpose in any manner. 33. In this case almost all the allegations are considered by this Tribunal in the case of H K International (supra). Further, the appellant has already stated that the imported goods were not used in the manufacturing of vanaspati ghee in their statement. The appellants have never admittedly that they have paid any amount over and above the invoice value although they have admitted that international price of subject goods as 450 USD PMT but the sa .....

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is of the statements of two indentors, namely Shri Anil Kumar Arora and Shri Rakesh Kumar who were unaware in the context of consignor and the appellant has not imported any goods through there indenters. 34. In these circumstances, I hold that decision of H K International (supra) is squarely applicable to the facts of this case. Therefore, relying on the said decision, wherein this Tribunal after going through the evidence has observed as under: "8. After going through the evidences relie .....

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d the appellants have strongly contended that they entered into negotiation with the supplier of the goods, who agreed to supply the same at US$ 185 PMT. There is no evidence recording any extra payment to the supplier. We also do not find any investigations made by the Revenue at the suppliers' end. In these circumstances, it is difficult to uphold the contention of the Revenue. 9. The Tribunal in the case of Jindal Strips Ltd. v. CC, New Delhi reported in 2001 (133) E.L.T. 570 (Tri.-Del.) .....

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