TMI Blog2013 (10) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... Declared (CIF) Value (in Rs.) Assessed Value Confiscated Value OIO No. Dt. R.F. (in Rs.) P.P. (in Rs.) Value acceptance Date (a) (b) (c) (d) (e) (f) (g) (h) (i) 282 8180148 dt. 10-10-12 12,29,224,94 14,35,193,87 14,20,503,03 245 dt. 1-10-12 2,84,,000/- 90,000 29-10-12 227 8365804 dt. 31-10-12 12,66,945,68 17,00,620,60 16,83,624,06 199 dt. 7-12-12 3,40,000/- 1,85,000 4-12-12 214 8466649 dt. 12-11-12 3,77,871,26 5,60,262,15 5,54,578,76 177 dt. 13-12-12 1,11,000/- 90,000 12-12- 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt. 9-11-12 3,30,000/- 1,25,000/- 8-11-12 The said consignments were imported by appellant at a declared value at shown above. The said imported goods were 100% examined in presence of Customs Officials, Chartered Engineer and representative of appellant and found to be old and used having residual life of more than six years and said Machines were found to be minor reconditioning and value was assessed on enhanced value against declared value. The said value was arrived by Chartered Engineer using the methodology of per unit inspection and production of market value recommendations based on several aspects like estimated useful life of Machines/Make Model/technology/country of origin/physical condition/comparison with similar goods imported in past/internet information/reconditioning etc. 2. The said imported consignment being second hand was restricted item in term of para 2.17 of Foreign Policy 2009-2014 and paras 2.33 2.33A of HBP and could be imported against valid license. The appellant submitted a letter to Addl. Commissioner, Customs that the import of said consignment was not restricted under FTP/HBP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal Nos. 890 to 894, 949 to 961 and 1170 to 1188 of 2012, dated 14-3-2013 [2014 (302) E.L.T. 212 (Mad.)]. (ii) That, the Office of DGFT, New Delhi, vide letter No. F. No. 01/93/180/63/AM-10/PC -2(B), dated 20-5-2013 intimated to Commissioner of Customs, Kolkata that in consultation with the Law Ministry it was decided not to file SLP against the said judgment of Madras High Court therefore it is a settled issue that said imported goods were freely importable up to 28-2-2013. (iii) That, assessable value was enhanced without disclosing any evidence whether appellant had paid any over and above payment in addition to price actually paid. Invoices were neither manipulated nor fraudulently obtained. The said goods were found as per declaration. There was no misdecleration therefore confiscation under Sec. 111(m) is not sustainable in law when there is no mis-declaration on part of appellant. (iv) That, there is no iota of evidence on part of appellant for invoking provisions of Section 112(a) of CA, 1962 to impose penalty. (v) That, case laws 2004 (177) E.L.T. 349, CCE v. Sh. Nakoda Impex, Hon ble Tribunal held that mere enhancement of value is no ground of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted only against valid specific license is not correct. I find from the para 2.17 of FTP 2009-2014 (as amended on 5-6-2012) that second-hand digital multifunction print and copying machine were restricted but allowed as per provisions of FTP, ITC (HB), HBP v.1, Public Notice or an authorization issued to import second hand item. The para 2.33 of Hand Book Procedures (Vol-1) incorporating changes up to 5-6-2012 had freely allowed the import of second hand capital goods except personal computer/laptops therefore it can be inferred that said imported goods were not restricted items and could be freely imported up to 28-2-2013 without any valid license. The DGFT has issued a Notification No. 35 (RE-2012)/2009-2014, dated 28-2-2013 bringing second-hand Digital Multifunction Print and Copying Machine under license regime. The judgment of Hon ble Madras High Court delivered in Writ Appeal Nos. 890 to 894, 949 to 961 and 1170 to 1188 of 2012, dated 14-3-2013, is very clear that upto 28-2-2013 there was no restriction on import of said imported subject goods. The Office of DGFT, New Delhi, vide letter No. F. No. 01/93/180/63/AM-l0/PC-2(B), dated 20-5-2013 intimated to Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of value, Revenue is first expected to discard the transaction value or at least reflect upon some evidence to cast doubt in respect of the same . 2012 (284) E.L.T. 673 (Tri.-Del.). 9. As per the guidelines issued by the C.B.E. C. vide Circular No. 4/2008-Cus., dated 12-2-2008, the assessing officer is required to follow the following procedure while assessing the second hand machinery. (i) {2}(i)If other parameters of Section 14 of the Customs Act, 1962 are satisfied, the transaction value method of Rule 3 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 can also be applied to importation of second-hand machinery sold for export i.e. it was imported immediately after sale without any further usage abroad. (ii) {2}(ii) However if transaction value of Rule 3 is rejected, valuation of second-hand machinery can be done under Rule 9, on the basis of value of new machine, as certified by the Chartered Engineer, and scaled down by allowing depreciation commensurate with the period of usage. Supreme Court judgment in the case of Gajra Bevel Gears [2000 (115) E.L.T. 612 (S.C.)] refers in this regard. (iii) (2}(iii) However, transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the sequential scheme. It has no role after the scheme has worked out. The Tribunal decision in the case of Venus Insulation Products Mfg. Co. [2002 (143) E.L.T. 364] refers. (viii) {5} Thus in respect of valuation of second-hand machineries as well, the assessing officers may apply Rule 12 in appropriate cases. As an illustration, if the declared value of a second-hand machinery is found to be much below the value arrived at by the depreciation method on the basis of the certified price of the new machinery in the year of its manufacture, the assessing officer may have reason to doubt the truth or accuracy of the declared value, and ask the importer to furnish further information and explanation. If he is satisfied, he may accept the declared value. But, if he still has reasonable doubt about the truth or accuracy of the declared value, he can reject the declared value under Rule 12, and proceed to re-determine the value under Rule 9 by following the Board s Circular No. F. No. 493/124/86-Cus. VI, dated 19-11-1987 in respect of the depreciation to be extended to such second-hand machinery. (ix) {6} In fact, for other imported goods as well, the method for acceptance or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade, when the seller or buyer has no interest in the business of other and price is the sole consideration for the sale or offer for sale. There are two conditions in this rule, first, value shall be determined using reasonable means consist to the Valuation Rules and data available in India, secondly value so determined should not exceed the price of such/like goods sold in course of international trade. Adjudicating authority adopted depreciation method as per Standing Order No. 3/88 and 5/88, based on report of Chartered Engineer and found that computed value was higher than declared value. There was no material evidence on record in OIO that how Chartered Engineer worked out the computed value except mentioning that Chartered Engineer had used methodology of per unit inspection and production of market value recommendation, based on a documentary price comparison/verification considering the estimated useful life, physical condition, comparison with similar equipment value inspected in past, information from internet, reconditioning etc. etc. Held by Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods, cannot preclude the importer from exercising the right of appeal. As such, we find no merit in the Revenue s appeal . 16. Held by Hon ble Tribunal in 2012 (275) E.L.T. 229 (Tri.-Mumbai), C.C. Mumbai v. Asian Hotel Ltd. importer accepting proposed loading of value and waived personal hearing, and in another matter waived of both show cause notice as well as personal hearing - HELD : Importer consented to value proposed by assessing officer without any challenge - Having done so, the importer cannot seek to reopen the matter by way of appeal proceedings before the appellate authority under Section 130. The decision of the Tribunal in the case of Rahul Ramanbhai Patel and Royal Enterprises cited supra supports this view . 17. I find that the appellant gave his acceptance of value enhancement but also wrote that his invoice value was correct and true. Appellant gave up his right of SCN/PH/OIO to clear their consignment quickly to avoid demurrage charges therefore value enhancement by Adjudicating authority and acceptance by appellant cannot be reopened in appeal. Since, value was enhanced by Adjudicating Authority based on value estimation given by Chartered Engineer and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 111(d) of CA, 1962 but on the contrary importer (Appellant) had wrote in their letter dated 31-1-2013 that as per Import Policy/HBP/ITC there was no restriction to import the said imported goods as decided by Hon ble Chennai High Court. There is difference version of appellant s application and OIO. OIO says Importer vide letter stated that they are not in possession of any license and had understood that the goods are liable to confiscation under Section 111(d) of the Customs Act, 1962. The importer also stated that they do not want any formal show cause notice and personal hearing in this regard. But appellant s letter submitted with Appeal Memorandum having acknowledgement stamp of Kolkata Customs reads as follows :- Chapter 2.17 of FTP 2009-2014 as amended on 5-6-2012 restricts import of digital print and copying machine but permit on condition of allowing in FTP/ITC/HBP or authorization. The HBP Vol. 1 restricts only import of used computer and parts but permits other used capital goods. This has been confirmed by judgment of Hon ble Chennai High Court vide W.P. (MD) No. 12268 to 12270 of 2012 that the FTP read with HBP clearly allows free import of digital multifunctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the wishes of the authorities or even under some misapprehension, and if the law allows it a right to ask for refund on proper appraisement and which is actually applied for the party cannot be estopped from making such application and ask for such refund . It was also followed in Laxmi Colour Lab v. CC - 1992 (62) E.L.T. 613 (Tri.) and CC v. International Exports - 1992 (62) E.L.T. 608 (Tri.). 22. The mere value enhancement based on Chartered Engineer Certificate cannot be a reason or ground for treating declared value as not true or genuine or misdeclared unless it is proved by reasonable corroborative evidence. Except Chartered Engineer certificate which is only a value estimation there is no other material on record to inference that declared value was misdeclared or invoices were fraudulent/manipulated or any additional payment over and above the declared value was paid to supplier. Held by Hon ble Tribunal that mere enhancement of value is no ground for confiscation of goods under Section 111 [2004 (177) E.L.T. 349 (Tri.-Bang.) CC, Visakhapatnam v. Sree Nakoda Impex.] From the facts it is revealed that it does not amount to any value misdeclaration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department enhanced the decelerated value on the advice of Chartered Engineer and appellant gave acceptance to avoid demurrage. Such acceptance given under certain compulsion cannot be considered as free consent or concurrence therefore neither imported goods can be confiscated nor penalty can be imposed. In a recent judgment KCD Corporation v. CC, Nhava Sheva, Appeal C/47/04-Kol Order No. A/1631/13/CSTB/C-I, dated 17-7-2013/issued on 3-8-2013 Hon ble Tribunal, Mumbai has held in a import case of old and used Canon photocopier machine consignment Accordingly, as held by this Tribunal in the case of Chemsilk Commerce (P) Ltd.v. CC (Port), Kolkata - 2009 (233) E.L.T. 113 (Tri.-Kolkata) the value declared by assessee not accepted and high value adopted on the basis of through enquiry and study of comparable goods imported by others. As in that case no incriminating evidence was found, nor any duplicate invoices/suppression was found, in that situation it was held that the redemption fine and penalty is not imposable. Therefore following the said decision of this Tribunal in the case Chemsilk Commerce (P) Ltd. (supra) we hold that in this matter redemption fine and penalty on count of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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