New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (12) TMI 1202 - CESTAT CHENNAI

2015 (12) TMI 1202 - CESTAT CHENNAI - 2016 (344) E.L.T. 1051 (Tri. - Chennai) - Undervaluation of import of Dyed Woven Fabrics - denial of availment of DFIA licence for clearance of the goods - confiscation and imposition of fine and penalty - Held that:- appellant is engaged in trading of imported fabrics and imported “Polyester Dyed Woven Fabrics” from China. Appellant’s contention is that contemporaneous imports relied by Revenue in the case of Bill of Entry No.6800547 dt. 11.5.2012 of M/s.IC .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lant failed to produce any evidence of purchase order and terms and conditions of sale and manufacturer s invoice before the Commissioner of Customs. - Appellants had relied various Bills of Entry and invoices in the form of additional evidence submitted before the Tribunal of import of Polyester Fabrics. In this regard, we find that appellant submitted written submissions to SCN before the adjudicating authority and also appeared for the personal hearing and failed to substantiate their cla .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

price is not true value and should bring on record any evidence of identical goods/similar goods imported at higher price. - In the absence of any valid documents by the appellant it is evident that declared price of US$ 0.70 per mtr. is not a normal price and the same cannot be considered as transaction value. We find that adjudicating authority correctly determined the value under Rule 4(3) of CVR 2007 and taken the lowest contemporaneous price of US$ 1.05 per mtr. instead of US$ 2.36/mtr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

here was no allegation made in the SCN for the denial of benefit of DFIA Licence or any misuse of DFIA licene for clearance of the goods. Therefore, we hold that appellants are entitled to utilize DFIA licence for clearance of the said goods. Accordingly, we allow DFIA benefit for clearance of the said goods. - impugned order is upheld but for the reduction in RF and penalty and allowing DFIA benefit - Decided partly in favour of assessee. - Appeal No. C/41935 & 41936/2013 - FINAL ORDER No.41730 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r of Customs, Tuticorin. 2. The brief facts of the case are that appellant M/s.Paarth Trading Company filed Bill of Entry No.5449215 dt. 13.12.2011 for import of Dyed Woven Fabrics declaring the quantity of 96119 meter equivalent to 141602.51 Square metre. Based on the intelligence gathered by DRI that goods are being highly undervalued, the office of DRI Regional unit, Tuticorin took up the matter for investigation and has examined the goods on 12.1.2012 on the reasonable belief that the goods .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

principles of natural justice in his order rejected the declared value of US$ 0.7 per Mtr on the imported goods and re-determined the value of US$ 1.05 per meter under Rule 4 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and also ordered for payment of duty of ₹ 69,61,352/-. He confiscated the goods covered under Bill of Entry No.5449215 dt. 13.12.2011 under Section 111 (m) and also imposed penalty of ₹ 30 lakhs on Shri Anil Kumar Tiwari, Proprietor .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that seizure was illegal as the goods were imported and filed Into Bond Bill of Entry for warehousing whereas the warehousing was denied and the goods were seized by the authority. He submits that OIO travels beyond the SCN and submits that only statement of Shri Anil Kumar Tiwari, Proprietor of appellant company was recorded. The adjudicating authority travelled beyond the SCN to consider extraneous factors discussed at paras 17, 18 and relied other evidences of Shri Vikram Jain of Chennai whe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e not given to the appellant. In this regard, he relied paras 16, 17 of the Hon ble Supreme Court judgement in the case of Tata Chemicals Ltd. Vs CC Jamnagar - 2015-TIOL-120-SC-CUS. 3.2 Regarding undervaluation, he further submits that for enhancement of value, the department relying on contemporaneous imports by M/s.ICON Fibers and Fabrics P. Ltd., Mumbai is not comparable as it was for the later period and he relied the comparative chart given at page 80 of the paper book and explained that bo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s CC Mumbai 2000 (132) ELT 321 (SC) 4. On the other hand, Ld. A.R for Revenue reiterated the findings of OIO and investigation report. She referred to copy of invoice extracted at page 56.The date of invoice is 10.11.2011 and also drew our attention to comparable invoice at page 44. She referred to mahazar for seizure of the goods annexed at page 51 & 52 and submits that the goods imported are polyester knitted fabrics whereas the appellant declared the goods as Polyester Fabrics whereas on .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

an general polyester fabrics. She relied invoice dt. 6.9.2011 of M/s.Shaoxing Mina Textile Co. Ltd., China annexed at page 53 where the contemporaneous goods were imported at the price of US$ 1.32 per mtr. and US$ 2.36 per mtr. supplied from the same country of origin which is similar to contemporaneous of invoice pertaining to M/s.ICON Fibers and Fabrics P. Ltd. She relied Supreme Court s decision in the case of CC Bombay Vs Shibani Engineering System - 1996 (86) ELT 453 (SC). She also relied p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

luation of imported goods i.e. Polyester Woven Dyed Fabrics where the declared value of US$ 0.70 per Mtr. is enhanced to US$ 1.05 per mtr is correct or otherwise, (ii) denial of availment of DFIA licence for clearance of the goods, and (iii) confiscation and imposition of fine and penalty is sustainable or not. On perusal of the SCN, investigation report, statement and mahazar, we find that the adjudicating authority has discussed the issue at length in his OIO. 7. As regards the appellant s pre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reasonable belief is established in effecting the seizure. As regards drawal of samples, we find that the Textile Committee s test report conforms to the description of the goods declared by the appellant and it is not disputed by the appellant or by the revenue. We do not find any infirmity as far as the test reports and drawal of samples of both the samples were drawn by the department in the presence of the representatives of the appellant. Therefore, appellant s relying on the Hon ble Supre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

parable goods were originated from China and shipment made from M/s.Shaoxing Mina Textile Co. Ltd., China in and around the same time and the date of shipment of both consignments are dt. 29.10.2011 and 11.11.2011 respectively. The appellant is also a trader and purchased the goods from supplier who is also a trader which is similar to evidence relied by Revenue. We find that appellant failed to produce any evidence of purchase order and terms and conditions of sale and manufacturers invoice be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

onsidered as normal discount offered by the supplier to the appellant. In the absence of manufacturer s invoice, or any supplier s price list or manufacturer s price list of the imported goods, we do not find any justification of the appellant it is a discount. The appellant s contention that they have purchased stock lot also is not supported with any evidence. Whereas we find that the statement of Shri Anil Kumar Tiwari, Proprietor clearly confirms that all his transactions are through telepho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a discount of 23% on the foreign supplier s price list was acceptable. Whereas in the present case, as already discussed in the preceding paragraphs there is neither supplier s or manufacturer s price list or any terms of contract of purchase of stock lost etc. to establish the quantity discount. Therefore, the Apex Court judgement is distinguishable and not applicable to the present case. The other citations relied by appellant in the case of CC Mumbai Vs J.D. Orgochem Ltd. (supra) and in the c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the adjudication proceedings. Therefore, we do not find any force in appellant relying these documents at this juncture. On the valuation of the goods based on contemporaneous imports, we rely Honble Supreme Court judgement in the case of CC Mumbai Vs ShiBani Engg. System (supra). The relevant paragraph of the Supreme Court order is reproduced as under :- "10. In our view, the Tribunal mis-directed itself. There is no question of reading the word and disjunctively here. The Exemption No .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f roller bearings are imported together but not if they are imported separately. 11. Insofar as valuation is concerned, the Collector was right in rejecting the transaction value of the goods because, plainly, it was a totally unrealistic value. For the purpose of placing a value on the goods, however, the Collector resorted to very tenuous reasoning which we cannot uphold. At the same time, we must say that we do not approve of the findings of the Tribunal in this behalf, which we have referred .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

clearly held that Revenue is bound to prove the declared price is not true value and should bring on record any evidence of identical goods/similar goods imported at higher price. The relevant para-24 of the Supreme Court's judgement is extracted as under :- "24. It is settled law that the onus to prove that the declared price did not reflect the true transaction value is always on the Department. It is also a settled law that the Department is bound to accept the transaction value ente .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

portation activities to the assessable value of the imported goods." The ratio held by the Apex Court in the above case is squarely applicable to the present case as the department proved that the declared price is not true transaction and also brought out clear contemporaneous evidence of similar/identical goods at higher price from the same country of origin. Once the department proved the bona fide, the onus is on the appellant to prove to the contrary. 10. In the absence of any valid do .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version