TMI Blog2006 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... een booked on 3-7-2003 in 11 containers (40 feet containers) and the same had been shipped from Miami vide Bill of Lading No. SJ-1205570. The BDF filed by the appellant had been filed under "self" indicating that he did not avail of the services of any CHA for clearance of his baggage. However, the appellant submitted an authorization for Shri Dinesh Yadav to assist him in the clearance of his baggage. The name of the consignor was shown as Susie Gonzalez Inc. DBA/Friends Cargo International, Miami, USA as agents for the consignee, the appellant and the said cargo arrived at Maersk CFS, D' Node on vessel Maersk Carolina under IGM No. 8474 and Item No. UB-147. The appellant filed his BDF by giving a value declaration of Rs. 4.79 lakhs for various items such as P computer, DVD, Music system, Home Theatre, video cassette/CDs, household linen, pictures/paintings, household tools, lamps/shades, decorative items, furniture, binoculars / telescope, mattresses /beddings, mirrors, clothes, books and filed, toiletries and miscellaneous items of household which were all declared as used. 3. Meanwhile, intelligence was also gathered by the officers of the Special Intelligence Unit (SIU) atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under Section 108 of the Customs Act, 1962 that the value declared in the BDF was not as per his instructions and that the same was filled up by the clearing agent on his own. With a view to ascertain the correctness of this claim a statement of Shri Dinesh Yadav, whose authorisation had been submitted by the appellant along with the BDF, was recorded and Shri Yadav confirmed in his statement that he had filled in the BDF form on the basis of instructions received from some third person who had introduced the appellant to the said Shri Yadav. The statements of the appellant as well as that of Shri Dinesh Yadav have been relied upon in the show cause notice and, therefore, such statements constitute enough evidence to prove that the actions of Shri Yadav were not with the knowledge or consent of the appellant. As such, by virtue of Section 147(2), the appellant should not be held liable for penalty nor should the goods be confiscated based on an unauthorised action of his agent who has owned up his mistake. It was further submitted that the Commissioner ought to have appreciated that the appellant has acted bonafidely by attaching along with the BDF a complete packing list, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et prices without even seeking to establish that the web sites assessed by the department belonged to the manufacturers of imported goods. It is settled law that Internet prices cannot be adopted, as the assessable value of imported goods even in a case where the goods are imported from the same manufacturer whose web site is accessed. In a number of case, the overseas retail sale prices as indicated on the tags/stickers appearing on the furniture have been straightaway adopted as the assessable value without appreciating that such tag could not be considered as representing the market prices of such goods in the course of international trade. In the absence of any legally acceptable method available on record, the department was duty bound to determine the assessable value based on the value as declared by the appellant in his statement under Section 108 of the Customs Act. Since the amount of Dir-hams 5.25 lakhs (equivalent to Rs. 66 lakhs approximately) which the appellant paid to the supplier represented the transaction value of the imported goods, that alone should have been accepted as the assessable value. Instead the Customs have adopted a completely arbitrary and fictitiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Baggage Rules, 1998 may be held to be available to the goods imported by the appellants and consequential relief by way of refund of excess duty paid and also refund of redemption fine and penalty along with interest and cost. 8. The ld. JDR appearing on behalf of the Revenue inter alia submitted that from the declaration form it may be seen that it is written 'self' and the same is also notarised. Therefore, the ground taken by the appellant that he had signed a blank form may not be correct. Drawing attention to Rule 8 of the Bona fide Baggage Rules, 1998 the ld. JDR submitted that the said rule permits clearance of bona fide baggage in case of transfer of residence whereas the goods in question are in commercial quantity. In this regard he drew our attention to para 31 of the impugned order. He also referred to Section 78 of the Customs Act, 1962. He submitted that the said section provides that "the rate of duty and tariff valuation, if any, applicable to baggage shall be the rate and valuation in force on the date on which a declaration is made in respect of such baggage under Section 77." Referring to para 27 of the EXIM Policy he submitted that there is no requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same as the 14 items for which the value of Rs. 4.5 lakhs was declared. It is thus evident that in respect of these 237 items, the BDF did not declare any value at all. It is only in the statement of the appellant recorded under Section 108 that he declared the purchase price of the 237 items as equivalent to Dirham 5.25 lakhs. This statement of the appellant has been relied upon in the show cause notice. We have to examine whether this value should have been accepted for assessment purposes or not. 10. It was also argued by the ld. DR that the provisions of Valuation Rules do not apply for determination of value of baggage. We cannot accept the arguments as the scheme of the Customs Act does not provide for a separate method of valuation for baggage. The provisions of Section 14 clearly provide that wherever duty of customs is chargeable with reference to the value, such value shall be determined as per the said section and the valuation rules framed under the said section. The Valuation Rules provide a complete code for determining the assessable value, if necessary, by resorting to best judgment method which is what the revenue has done in the present case. The ld. DR argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accept this plea, quite certainly the said price tags only refer to retail prices of goods in the country of export and not the price for export to India. In any case, such cases of price tags are very few and even if the same were to be accepted as a basis for valuation, the value ascertained would not work out to more than Dirham 5.25 lakhs. We, therefore, hold that the value as determined by the Commissioner in the order is not correct. In the absence of any other valid basis for determining a different value, the value as declared by the appellant in his statement under Section 108 of the Customs Act deserves acceptance. To this value, a further amount of Rs. 4.5 lakhs is required to be added as the value of used items. The sum total of the two would be the total assessable value of the baggage which, we were informed, comes to Rs. 66 lakhs. 12. It was the contention of the appellant that the BDF filed by him been signed by the appellant in blank and that therefore appellant could not be held responsible for any wrong declaration appearing on it. We find that statements of the CHA as well as of the appellant which the notice relies upon do support this contention of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on transfer of residence cannot be denied. While we agree with these two submissions, we find that the benefit of TR cannot be granted in respect of goods which were new and not in possession of the appellant during his stay abroad. In the present case, the goods were shipped directly from USA while appellant was residing in Dubai. The exemption available under the TR provisions applies only to such goods which were in possession of the passenger prior to his arrival in India. This condition is not satisfied by the appellant in the present case merely by virtue of the fact that the Bill of Lading stood in the name of the appellant. We, therefore, hold that in respect of the items which were shipped from USA, the benefit of TR is not available. We also find that in the BDF filed by the appellant, it was indicated that he was coming from USA and that the baggage had also arrived from USA. This declaration however is not correct as the appellant had arrived from Dubai and not from USA. To this extent there is a misdeclaration and therefore the goods are liable to confiscation under Section 111(m) of the Customs Act, 1962. However, while imposing redemption fine, we take note of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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