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2016 (1) TMI 97 - CESTAT MUMBAI

2016 (1) TMI 97 - CESTAT MUMBAI - 2016 (336) E.L.T. 97 (Tri. - Mumbai) - Mis-declaration of value & description of imported goods - various goods including AB King Pro (Exercise Bench), 5 in 1 Air O Space Sofa (Inflatable Sofa Bed), Slim N Lift (Female Shorts), Sauna belt (Fat Reduce Belt), Tool Kits, Magic Bullet (Food Processors), Drill M/c and Diamond Blades from China and supplied it to Telebrand and these goods were mainly imported from /through M/s China 5 Star Products and M/s Creative Na .....

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es of the similar goods imported by other importer such as M/s Rico Gems based on the available prices for contemporaneous imports of identical goods by other importers. - Once it is undisputed fact that the declared value was not accepted and for the purpose of assessment valuation was done on the basis of contemporaneous price of identical or similar goods, further enhancement of value was not permissible. - After detailed examination of facts and records we find that the demand of dif .....

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- 14-12-2015 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri Vikram Nankani, Sr. Adv. & Shri Anil Balani, Adv For the Respondent : Shri V K Singh, Special Consultant ORDER Per Ramesh Nair These appeals are directed against the orders-in-original Nos. 74/2012/CAC/CC(I)/AB/VI dt. 27.11.2012 and 78/2012/CAC/CC(I)/AB/VI dt. 03.12.2012 passed by the Commissioner of Customs (Import), New Custom House Ballard Estate, Mumbai wherein demand of custom duties, confiscation .....

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itesh Israni and Telebrands India Pvt. Ltd. 2.1 M/s Shreenath Enterprises was operating from the premises of M/s. G.N.G. & Co. the work of both the firms was being looked after by S/Shri Prakash Chandra Premshankar Pandya and Shri Nandgopal Naidu. The premises of the said M/s. G.N.G. & Co. and M/s. Shreenath Enterprises and M/s. Telebrands India Pvt. Ltd., were searched and incriminating documents were recovered. Further goods which were purchased by M/s Telebrand from the above firms we .....

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), Sauna belt (Fat Reduce Belt), Tool Kits, Magic Bullet (Food Processors), Drill M/c and Diamond Blades from China and supplied it to Telebrand and these goods were mainly imported from /through M/s China 5 Star Products and M/s Creative Nations International. 3.2 During the search of the office of the appellants, various documents were seized. Page no 124 and 125 of the seized file contain a statement of account containing details of the goods imported by M/s GNG and Company and M/s Shreenath .....

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in which the value was shown less as compared to the actual value of the goods and the other the actual value invoice. The invoice meant for bank purpose which showed lower value. Payments to the suppliers were however made as per the actual value of the goods. Shri Pandya confirmed his above statement vide his statement dated 03.05.2006 and 29.06.2006. In his above statements Shri Pandya gave further details regarding actual value of the goods. Shri Pandya has further stated that statement of a .....

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s had made the remittance to the supplier i.e. China 5 Star Products Co. Ltd. as per the bank invoice through Bank of India, Mulund (West) Branch and the balance amount were arranged through unauthorized channel to the supplier. 3.4 In his various statements Shri Nandgopal Swami Naidu, other partner of M/s GNG and Co. confirmed the correctness of statement of Shri Pandya. 3.5 Two E-mails recovered from the seized file (1). E-mail dated 16.6.2005 from Shri Prakash Pandya to Shri Felix wherein it .....

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mail dated 23.08.2005 from Shri Felix of China 5 Star Products stating- "subject: Proforma Invoice Dear Prakash "We have enclosed PI for FOB NINGBO USD 18, pl confirm and for Bank the price is not changed, it is still USD 7.50 Regards Felix, Email dated 23.08.2005 05.56.09 Subject: Re: LAST PRICE OF AB KING PRO "OK the price is accepted because Chinya is my best friend" Regards Prakash 3.6 Invoices of China 5 Star Products raised on Hotbrand UAE and TV Mart WORLDWIDE Malaysi .....

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sdeclaration of the value of Air Sofa imported by the one appellant M/s. Shreenath Enterprises from M/s CNI, China. 3.8 M/s. G.N.G. & Co. has also imported goods like Armature Starter Coil, Wheel Cover, Cover Plate, Pinion, Metal Shafts, Wing Block, Plastic Jar Etc by mis-declaration of value as detailed the SCN. 3.9 During the period July 2005 to April, 2006, Shreenath Enterprises filed 13 B/Es for clearance of different goods [12 consignments were cleared from JNCH and from Mumbai Customs .....

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d imposition of penalties under Section 114A, 114AA and 112 of the Customs Act, 1962. 3.10 The said SCNs have been adjudicated, demand of duty has been confirmed and RF and PP has been imposed vide the impugned Orders-in-Original dated 27.11.2012 and 03.12.2012. 4. Shri Anil Balani, Advocate Ld Counsel for the Appellants made the following submission: (1) The Show Cause Notices rely on pages 124 & 125 from the seized file No. A1. The values mentioned in the said pages 124 & 125 are adopt .....

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cted confessions. (b) The said two pages are not signed by any person nor do they bear the stamp of any company. The name of the foreign supplier is not mentioned on the said two pages. The currency is also not indicated. (c) The descriptions of the good in the invoices are different from the descriptions mentioned on the said pages 124 & 125. The descriptions do not match or do not tally and it is impossible to correlate the descriptions. E.g. the description Slim & Lift according to th .....

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htesham Mohd. Ismal [2007 (220) ELT 3 (SC)], the Hon'ble Supreme Court has held that confession of a co- accused person cannot be treated as substantive evidence. Para 16 of the said judgment reads as under:- "We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram [2006 (13) SCALE 386], this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession .....

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s to arrive at a finding. (3) Enquiry was not conducted on alleged remittance of foreign exchange abroad. (e) Prakash Pandya was arrested on 19.9.2007 and he was released on bail. In terms of the bail order Prakash attended the office of the DRI regularly thereafter. But no confessional statement was recorded. The SCN finally came to be issued after a long delay on 6.4.2010. (f) In view of Shri. Prakash Pandya's retraction, the department ought to have interrogated him again. (g) Shri. Praka .....

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e of Agrawal Round Rolling Mills Ltd. [2015(317) ELT 145(T)] the Hon'ble Tribunal has held that the Adjudication Authority, in accordance with the Provisions of Section 9D(2) of the Central Excise Act, 1944 must examine the witnesses whose statements have been relied upon by the Department and thereafter must permit their cross-examination by the Appellant. (i) In the case of Tejwal Dyestuff Industries [2007(216) ELT 310(T)] the Tribunal has held as under:- "Recording of the confessiona .....

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len victim to this type of strategic confessional statements which have been retracted soon after they were made in the affidavits which were withheld by the deponents till the proceedings came up before the Commissioner, by which time the damage of not a making fuller investigation, thinking that the confessional statements are made and not retracted, was already done." (j) The Notice does not contain any evidence of remittance of differential amounts (as mentioned in the said pages 124 &a .....

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or Sr. No. 19 which refers to emails correspondence with the suppliers, the source is not disclosed. Such email correspondence from undisclosed sources was shown to Prakash on 3 rd May 2006 and his confessions were recorded. However, para 5.3 of the notice records that on 29.6.2006 the seal of the computer was broken for the first time and printouts were obtained. The learned Commissioner ought to have asked the investigators to disclose the source of the email correspondence shown to prakash on .....

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ulfilled. In the case of Agarvanshi Aluminium Ltd. [2014 (299) ELT 83 (T) the Hon'ble CESTAT has held as under "From the above provisions, it is clear that for admissibility of computer printout there are certain conditions have been imposed in the said section. Admittedly condition 4C of the said section has not been complied with and in the case of Premium Instruments & Controls (supra) this Tribunal relied on the case of International Computer Ribbon Corporation 2004 (165) ELT 18 .....

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re and clearance. Thereafter it was found that there is strong parallel between the instant case and the case cited. Nothing contained in the printout generated by the PC can be admitted as evidence for non- fulfilment of the statutory condition." In this case also, we find that the parallel situation as to the decision of Premium Instruments & Controls (supra). Therefore, the printout generated from the PC seized cannot be admitted into evidence for non-fulfillment of statutory conditi .....

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-mail correspondence. (c) Signature of Ashwin Gupta is missing on the said e-mails unlike pages 124 & 125 of seized file No. A1. (d) The said e-mail correspondence was not shown to Prakash Pandya while recording his statement dated 19.4.2006. It was shown to Prakash Pandya for the first time on 3.5.2006. (e) There is no reference to seized file No. A1 in the statement dated 3.5.2006 of Prakash Pandya. E-mail file was shown to Prakash Pandya instead of seized file No. A1. (f) Proforma Invoice .....

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e allegations made by the department more effectively. The action of the department is contrary to and in violation of CBEC Circular No. 42/88-CX dated 24.5.1988 and the law laid down by the Hon'ble Bombay High Court in the case of Silicon Graphics System (India) Pvt. Ltd. [2006 (204) ELT 247 (Bom.)]. (h) Regarding computer printouts (pages 13 to 19) mentioned in Sr.No. 17 of Annexure-A to SCN, no question was asked to anybody under Section 108. There is no confession about the same. Therefo .....

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. 18 refers to printouts taken from the computer under panchnama dated 29.6.2006. However, for Sr. No. 19 which refers to emails correspondence with the suppliers, the source is not disclosed. Such email correspondence from undisclosed sources was shown to Prakash on 3 rd May 2006 and his confessions were recorded. However, para 5.3 of the notice records that on 29.6.2006 the seal of the computer was broken for the first time and printouts were obtained. The learned Commissioner ought to have as .....

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oices for air Sofa Massage. Both the said proforma invoices are neither signed nor stamped by the foreign supplier. For the first time they were shown to Nandgopal Naidu on 18.1.2010 after a delay of 4 years from the date of alleged seizure on 18.4.2006. Signature of Prakash Pandya was never obtained on these invoices and he was never shown the said invoices. The goods are massage chair imported from China. Supplier M/s. Creative Nation shipped 5-in-1 Air sofa which is a different commodity. 8) .....

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e Assistant Commissioner of Customs, New Custom House wherein the both the foreign suppliers confirmed that they received payments against their supplies only the amount mentioned in the invoice and also confirmed the price at which invoices were raised. 11) Shri Vikram Nanakani, Sr. Counsel appearing on behalf of M/s Telebrand India Pvt. Ltd. and its' director Shri Hitesh Israni submits that the relationship of Telebrand with M/s Shreenath Enterprises and M/s GNG & Co. is only as a buye .....

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nt towards purchase of the goods which was billed and it is not the case that Telebrand made any payment over and above the invoiced amount. In this undisputed facts, there is no reason to implicate Telebrand in this case and therefore the Ld. Commissioner erred in imposing penalties on Telebrand and Shri Hitesh Israni. 5. ON the other hand Shri V.K. Singh, Ld. Special Consultant appearing on behalf of the revenue reiterates the findings of the impugned order. He made additional submissions as u .....

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to whom the statement was given. The letter addressed to the collector has to be treated only as representation or complaint and not a valid retraction. As held by the Hon'ble CESTAT in the matter of KP Abdul Majeed vs. Commissioner of Customs, Cochin, 2014 (229) ELT 108-TRI Bang. Therefore retraction is not a valid retraction. Further the so called retraction has been made on the first available opportunity other it to be treated as an after thought as held in the matter of - ii) Pundole S .....

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fficient to make confessional statement irrelevant. In this regard, the following judgments are relied: Vinod Solanki vs. Union of India - 2009(233) E.L.T. 157 (SC) 5.1 In view of the above it is submitted that there was no retraction by Shri Pandya and even in his letter is taken as retraction it an afterthought hence his statements are true and correct. 5.2 It was further submitted that the Ld. Commissioner erred in relying on e-mails sent and received by Prakash Pandya as print out from the c .....

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undervaluation it was prepared only to obtain maximum payment from Telebrand by showing higher costing. - In this regard it is stated that Shri Pandya in this statement has explained about the various entries made in costing sheet available at page 124-125 of the file seized on 18.04.2006. He has categorically stated that value shown in the costing sheet is correct value of the goods. The sheet prepared for showing to M/s Telebrand are other than these sheets. Costing sheets prepared and shown t .....

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were not corroborated with any credible documentary evidence of undervaluation.- In this context it is submitted that this chart was received from M/s CNG and company during the course of search of his premises. When asked to explain about these details given in chart, Shri Pandya has explained that thesechart contains details regarding value of the imported goods (value shown in the invoice, actual value etc.). Therefore Adjudicating authority has correctly relied on these documents. In this c .....

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t is submitted that the value given in the statements are based on the records recovered from the premises of the importer. These value were also confirmed by Shri Pandya to be true. The Department has therefore correctly relied upon these values as these values are real transaction value. 5.7 That once value was enhanced by the department after referring to NIDB Data, value could not be further enhanced. - This was not a ground taken by the appellant in reply to SCN or at the time hearing a gro .....

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also aware that value enhanced by the appraising officer is much lower than actual value, still he chose not to declare the correct value of imported goods. After investigation Department came to know about the actual value, still he chose not to declare the correct value of imported goods. After investigation Department came to know about the actual value of the goods. Therefore value has been re-determined correctly as re-determined value was correct transaction value. In this case the assesse .....

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4 and rule 8 of the CVR, 1988 simultaneously. As there was evidence regarding the actual transaction value of the goods, which was admitted by Shri Pandya. The Adjudicating Authority has correctly re-determined the value invoking provisions of Rule 8 of valuation Rules. 5.9 As this case where value has been mis-declared the demand has correctly been confirmed invoking the extended period of limitation. Reliance is placed on (i) 2010(256) ELT 369, Commissioner of C. Ex. Surat - I vs. Neminath Fab .....

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M/s GNG & CO. the Importer in their costing sheet has shown the value of the goods twice. This was discussed by the importer for fixing the value of the imported goods with Shri Hitesh Isarani. This shows that Shri Hitesh Israni was aware regarding the actual value of the goods. The supplier of 5 in 1 Sofa M/s CNI Hongkong was introduced to the importers by Shri Hitesh Israniand after clearance this sofa was sold to M/s. Telebrand. Investigations in the matter revealed that the value of 5 in .....

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mmissioner of Customs and reject the appeals. 6. We have carefully considered the submissions made on behalf of Appellants as well as the submissions made by the Ld. Special Counsel on behalf of the revenue and perused the records. 7. We observed that the department heavily relied upon the statements of Shri Prakashchandra Pandya and Shri Nandgopal Govindwamy Naidu. We find that both the persons have retracted their so called confessional statements vide letter dated 31.07.2006. Therefore the sa .....

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y the Ld. Counsel, it clearly shows that the said letter has been marked and reached to the concerned investigating officers. Therefore even the retraction letter is addressed to the Commissioner but since it has reached to the concerned officer, it is as good as submitted to the said investigating officer. Moreover, if at all there is any objection of the department on the said retraction, nothing prevented the departmental officers to reject the same with cogent reason or to record a counter s .....

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s India P. Ltd. 7.2 We find that although the Show Cause Notice and the impugned Order heavily rely on pages 124 & 125 from the seized file No. A1, and the values mentioned therein, however, it is seen that in the case of 5 in 1 Sofa Bed /Air Lounge the value mentioned in these seized documents has not been accepted for the purpose of valuation in the show cause notice itself, as evident from 2 nd row of table at Page 30 of the Show Cause Notice itself. Therefore, the contents of these seize .....

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o pages. The currency is also not indicated. The descriptions of the goods in the invoices are different from the descriptions mentioned on the said pages 124 & 125. The descriptions do not tally and it is impossible to correlate the descriptions. We find that as per the ratio laid down by the Hon'ble Supreme Court in Bussa Overseas Properties Ltd.,2007 (216) ELT 659 (SC), such documents cannot be treated as evidence to prove undervaluation. Moreover, Shri Prakash Pandya immediately retr .....

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as relevant as required under Section 138B of the Customs Act in the course of the adjudication proceedings. In Agrawal Round Rolling Mills Ltd. 2015 (317) ELT 145 (T), the Tribunal has held that the Adjudicating Authority, in accordance with the Provisions of Section 9D(2) of the Central Excise Act, 1944 (parimateria to section138B of the Customs Act, 1962) must examine the witnesses whose statements have been relied upon by the Department and thereafter must permit their cross-examination by .....

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icers, so that they become complacent and do not carry out a fuller investigation. It appears that the Revenue Officers in the present case have fallen victim to this type of strategic confessional statements which have been retracted soon after they were made in the affidavits which were withheld by the deponents till the proceedings came up before the Commissioner, by which time the damage of not a making fuller investigation, thinking that the confessional statements are made and not retracte .....

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rom pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the court must seek corroboration of the purported confession from independent sources" In the case of Vinod Solanki, 2009 (233) ELT 157 (SC) the Hon'ble Supreme Court has inter alia held that the burden to prove that confession was voluntary is on the department. Court must bear in mind the time of retraction, nature and m .....

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Ltd 2014 (299) ELT 83 (T) the Tribunal held as under:- From the above provisions, it is clear that for admissibility of computer printout there are certain conditions have been imposed in the said section. Admittedly condition 4C of the said section has not been complied with and in the case of Premium Instruments & Controls (supra) this Tribunal relied on the case of International Computer Ribbon Corporation 2004 (165) ELT 186 (Tri-Chennai) wherein this Tribunal has held that "computer .....

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allel between the instant case and the case cited. Nothing contained in the printout generated by the PC can be admitted as evidence for non- fulfilment of the statutory condition." In this case also, we find that the parallel situation as to the decision of Premium Instruments & Controls (supra). Therefore, the printout generated from the PC seized cannot be admitted into evidence for non-fulfillment of statutory condition of Section 138C of the Customs Act, 1962." 7.6 The source .....

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documents therefore is not beyond doubt for accepting the same as substantive evidence. 7.7 A lot of emphasis was given by the Learned Commissioner on letter dated 14 th May 2007 of Deputy Head, Trade Investigation, Hong Kong addressed to the Consulate General India, Hong Kong contending that in the case of imports of Inflatable Sofa Beds from CNI - Creative International (HK) Ltd there were corresponding invoices issued by Creative Nations International Limited, Philippines on the Indian buyer .....

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the goods nor any dates of such alleged invoices indicated. The invoice numbers mentioned on the same for comparison are not even tallying. Prakash Pandya was never interrogated with respect to the report received from abroad while recording his statements. The said letter also bears a Caveat to the effect that the said document is not to be shown/copied to a third party or used in any proceeding. In fact the covering letter of the Consulate General of India, Hong Kong to the DRI makes it clear .....

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report of Hong Kong Trade Investigation Bureau. In the absence of such authenticated copies being supplied, no reliance can be placed on the said report. In CC v South India Television P. Ltd.- 2007 (214) ELT 3 (SC), the Hon'ble Supreme Court held that mere Investigation Report of the Hong Kong Excise and Customs (which had a similar caveat as in the present case as would appear from the tribunal's decision reported in 2001 (136) ELT 243) without authenticated copies of the foreign docum .....

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have been received and hence Section 139 is not applicable. As held by the Supreme Court in the case of Collector v East Punjab Traders 1997 (89) ELT 11 (SC), for the presumption under Section 139 to apply, authenticated copies of the Invoices referred to in the report ought to have been obtained from the Hong Kong Customs. The judgment of this Tribunal in the Best & Co vs CC (supra) which is relied upon by the department, is not applicable in the peculiar facts of the instant case. In the .....

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Co. as their name is not appearing in the said report. 7.8 There is no tangible proof of any payment to the foreign supplier by the Appellants or by Mr. Hitesh Israni of Telebrands India P. Ltd., of any amount over and above the prices mentioned in the foreign suppliers invoices. There is no cogent material whatsoever in the Notice issued to the Appellants for proposing enhancement of the value of the said goods. 7.9 It is not in dispute that at the time of import itself, the customs authorities .....

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e of identical or similar goods, we find substantial force in the contention on behalf of the appellants that further enhancement of value was not permissible in the facts of the instant case. In CC v Paras Electronics 2009 (246) ELT 231 the Tribunal held that- "5. We find that in this case the price declared by the respondents was not accepted and was enhanced by the assessing officer from US $ 270/ pc to US $ 313/pc. Once the price was enhanced, the revenue is supposed to make all the enq .....

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T, then further proposal by a issue of show cause notice consequent to DRs enquiries, to re-value at USD 710 PMT in the case, cannot be upheld. Nothing contrary has been shown. When the proper officer had reasons to believe that the declared value in the present case of USD 005 per piece was not as per section 14 and thereafter, making such enquiries, as he deemed fit, loaded it to USD 0.10 per pieces, then further proposal to reload the same cannot be approved since no ground of earlier enquire .....

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rder (see. CC Cochin V/s. Arvind Exports (P) Ltd. [2001 (130) ELT 54 L.B]. No review/ appeal against such an order of determination of value by the proper officer was taken by Revenue. The loading for USD 0.05 per pcs to USD 0.10 per pcs is final. That assessment, cannot be challenged by alleging misdeclaration of nature of goods, which the proper officer in the groups was in any case required to ascertain, the loading of value, on second check BE should not have been ordered. In this respect, A .....

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der on valuation." In Shimnit Machine Tools & Equipment Ltd. v. CC - 2006 (204) ELT 630, the Tribunal observed that- "3. We have heard both sides. We find that in respect of 3 Bills of Entry, the declared values were enhanced and these were finally assessed. The value of Maxell brand batteries covered by Bill of Entry No. 3784, dated 20-8-97 was loaded to ₹ 10,14,842, value of Golden Power Brand Button Cells covered by Bill of Entry No. 4004 dated 29-8-97 was enhanced to S .....

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ord Shiva Overseas [2005 (181) E.L.T. 213] particularly on the basis of quotations/letters/price lists. No export declaration of the supplier is available with the department in respect of Maxell Brand Batteries. The loading on the basis of profoma invoice signed by Nitin and Sanghvi and issued to SANSHO, Japan cannot be relied upon as it is well-settled that value cannot be loaded on the basis of proforma invoice. The export declaration in respect of Golden Power Brand Battery Cells are unsigne .....

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