GST Helpdesk Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
What's New Case Laws Highlights Articles News Forum Short Notes Statutory TMI SMS More ...
Extracts
Home List
← Previous Next →

2016 (2) TMI 8 - CESTAT MUMBAI

2016 (2) TMI 8 - CESTAT MUMBAI - TMI - Valuation - rejection of transaction value of the imported and poppy seeds from Turkey - validity of documents relied upon by hte revenue - Revenue submitted that, the differential amount is sent to the suppliers by unofficial channels, the assertion of the appellants that the entire amount has been sent through banking channels is incorrect. - Held that:- The revenue relied upon copies of export invoices and declarations submitted by the suppliers/the expo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

relied upon, which could not be used, even if they may have been forwarded by 'authorities' to the investigating agency through official channels.

As regards the insurance documents as well as entries from Comtrade and UK public ledger and other journals it is now well settled law that such information cannot be used to doubt or reject the transaction value.

We also note that the adjudicating authority has refused to look at other contemporaneous imports, which are not th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

impugned orders are unsustainable and liable to be set aside and we do so. - Demand and penalty set aside - Decided in favor of assessee. - C/EH/93737/15-MUM C/85360/14-Mum - Dated:- 28-10-2015 - M V Ravindran, Member (J) And P S Pruthi, Member (T) C/EH/93737/15-MUM C/85360/14-Mum, C/EH/93740/15-MUM, C/85376/14-MUM, C/EH/93741/15-MUM C/85372/14-MUM, C/EH/93742/15-MUM C/85374/14-MUM, C/EH/93743/15-MUM C/85375/14-MUM, C/EH/93744/15-MUM C/85373/14-MUM, C/EH/93747/15-MUM C/85356/14-MUM , C/EH/93748/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ondent : Shri V K Singh, Spl. Counsel ORDER Per M V Ravindran All these bunch of appeals are arising out of similar Orders-in-Original No. CAO/120/2013/CAC/CC(I)/AB/GR-I dated 21.10.2013 and 81/2011/CC(I)/JNCH dated 28.02.2012 passed by the Commissioner of Customs (Import), Mumbai and Nhava sheva rejecting the transaction value of the imported and poppy seeds from Turkey. The adjudicating authority has confirmed the demands raised in various show cause notices and has also imposed penalties unde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

5 submission of Counsel for appellants were and on specific request of the learned D.R., matters were heard today. 4. As the impugned orders are more or less the same, the issues arising from all the appeals are being dealt with herein collectively. The appellant firms are comprised of 3 broad groups as under: (a) The Ratan Lal group comprising of Arushi Exports, Ajay Exports, Radhe Shyam Ratanlal (b) The Bhatia group comprising of Vibha Bhatia, Raju Bhatia, Rakesh Kumar & Co., Americn Almon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Customs authorities allegedly showing a higher value as compared to the declaration made by the Indian importer. (b) Foreign Turkish insurance documents filed by the Turkish supplier while insuring the goods. In furtherance to this the DRI received information/evidence from the Indian embassy in Moscow, said to be the documents forwarded by Turkish Customs, which in turn were forwarded to the DRI and are (a) For them export declarations made by Turkish exporter which were submitted before Turkis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

how cause notice. After granting various personal hearings to the appellants the adjudicating authority did not agree with the contentions raised and confirmed the demand's with interest and also imposed penalties. 7. Heard the counsel for all the appellants and the special Counsel for the revenue. 8. The Counsel for the appellants urged various points in the case which is summarized as under: (a) As regards the insurance documents, the adjudicating authority has acted in complete ignorance .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ocuments furnished by DRI before the adjudicating authority has sought to corroborate thereof all documents of insurance on the basis of documents received from the Indian embassy, Moscow under letter dated 30/10/2009 of the first Secretary Trade, embassy of India Moscow forwarding letter dated 14/10/2009 addressed by Deputy Director General (External), prepared and sent by Turkish authorities to the first Secretary Trade, Embassy of India, Moscow, supposed to be showing an invoice-wise comparat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

completely black about and all, if not majority of the entries have been redacted and cannot even be read; those what can be read does not contain the name of appellant; (iii) the perusal of the letter dated 14/10/2009 addressed to Deputy director-general, external relations, Turkey would show that that is not even a whisper of the word "poppy seeds" and further that even the subject line of this letter reads "WC O recommendation 1953" without any reference to any consignment .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t of relied on documents and there are no documents as regards any of the other entities; (vi) the number, nature and contents of such documents said to have been received from Turkish Customs via the Indian embassy, Moscow is not known, moreover the letter dated 14/10/2009 addressed to Deputy director general, external relations, Turkey has been sent in response after two years to a request dated 09/03/2007 which increases the doubtful nature of such documents, veracity and the relevance thereo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ated and unsigned documents could not be used, even though they may have been forwarded by the agency to authorities i.e investigating agency through the official channels. The following case laws are relied upon for this proposition: 1. East Punjab Traders 1997 (89) ELT 11 (SC) para 5 2. V K Impex 2002 (141) ELT 564 affirmed by Supreme Court as reported at 2003 (158) ELT A 184 3. Adani exports 2009 (243) ELT 115 4. Venus Enterprises 2006 (199) ELT 661 5. South India Television Private Ltd. 2001 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

igher price in order to claim an incentive/higher incentive, the following case laws are relied upon South India Television Pvt Ltd. (supra), Taito Watch Manufacturing (supra), Truwoods Pvt. Ltd. (supra). 8.3 As regards the Department's reliance on Comtrade, UK Public Leger etc, the counsel stated that the impugned order has erroneously relied upon the use of data from the Public Ledger, Comtrade to show that the prize of poppy seeds was far higher than what was declared by the appellant. Th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ports P Ltd. 2004 (165) ELT 417 iv. Dhirish International 2005 (187) ELT 94 v. Sangeeta metal (India) 2002 (140) ELT 306 vi. Ruchi associates 1992 (59) ELT 155 affirmed by Supreme Court as reported at 1992 (61) ELT A 134 vii. Radha V company 2003 (156) ELT 810. 8.4. The Counsel for appellant further argued that under the Customs Act, 1962, duty is chargeable on goods. As per Section 14(1) assessment of duty is to be made on the value of the goods. Rules have been framed which are known as the Cu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d rule 4 (1) mandates the authorities to accept price actually paid or payable for the goods under assessment as the transaction value. This mandate is not variable but for certain exceptions specified in rule 4.2. It is only when the transaction value is rejected, then the transaction value has to be determined proceeding sequentially through rules 5 to 8. Conversely, if the transaction value can be determined under rule 4(1) and does not fall under any exceptions as provided under rule 4(2) th .....

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 investigating agency has reasons about the truth and accuracy of the declared value, it may ask the importer to provide explanation for the declared value. It was further submitted that the term 'reason to doubt' does not mean include "reason to suspect", hence the investigating agency, if it suspects a transaction value, it must rely on the reasons for which investigating agency has documentation, it is the duty of the adjudicating authority to see the probative value of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

3 (157) ELT 284 xi. Gujarat Ambuja Cement Ltd. 2003 (157) ELT 188 xii. Tapan trading CO. 2001 (128) ELT 456 xiii. Kumar associates 1993 (65) ELT Firebird. 8.6 It was pleaded that the appeals be allowed and impugned orders be said aside. 9. Learned Special Counsel and SDR appeared on behalf of the revenue. They supported the impugned order by submitting that the nature of the documents as discussed in the show cause notice and its evidentiary value has been thoroughly examined in the impugned ord .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as no protest nor it is recorded under duress. It is the submission that though the retraction of the statements were made, it is not made to the same authority hence it seems to be an afterthought. It is the submission that if the values have been enhanced during the assessment, the same values cannot be disputed is incorrect as the undervaluation is due to suppression, willful misstatement and collusion hence the value of the imported goods can be re-determined and differential duty has been 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

rade also indicates the same as average price for the poppy seed's imported from Turkey into India. It is the submission that as against such data, the value declared by the appellants was very low hence the transaction value was rejected. It is the submission that on the phase of incriminating documents having evidentiary value the rejection of transaction value was correct and the submission that contemporaneous value should be adopted is also incorrect and it has been dealt by the adjudic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ELT 641 9.1 It is the submission that once appellant has admitted to undervaluation and mis-declaration, he cannot turn around and state that valuation undertaken by the Department is not sustainable in law for this proposition reliance is placed on American eye light private Limited 2013 (290) ELT 720. 9.2 It is the further submission that after this case, the revenue has fixed the base value for the purpose of determination of duty of white poppy seed's which further supports the case of t .....

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, UK public ledger and like sources of the information can similarly be used to enhance transaction value declared by the importer. (d) whether penalties need to be imposed on the appellants. 10.1 On consideration of the rival contentions and perusal of records, the following position emerges: (a) The revenue relied upon copies of export invoices and declarations submitted by the suppliers/the exporters before the Turkish authorities. This is evident from reading of paragraphs 9.1.1.1 of the 2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

further states that an exercise of segregation and co-relating such documents would be needed. It is also seen that the comparative statement set to have been filed awarded is blacked out and most of the entries have been redacted and cannot be read. The revenue has not been able to explain this satisfactorily. It is settled law that in order to be admissible as evidence, the copies of foreign documents are required to be tested and signed by the Turkish Customs authorities which they were not. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rs (supra). (b) As regards the insurance documents as well as entries from Comtrade and UK public ledger and other journals it is now well settled law that such information cannot be used to doubt or reject the transaction value. As regards the value on the insurance documents, Apex Court in the case of Orient Enterprises (supra) while affirming the judgement of the Tribunal; Christelle Violene (supra); Nina Chaka Pvt. Ld.(supra) held that the value declared for insurance purposes by the exporte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

settled in favour of the appellant and we find strong force in the submissions made by the learned Counsel for appellant that on the issue in hand, the adjudicating authority has incorrectly relied upon the values of poppy seed's by considering the same from Comtrade and UK public ledger. In our view the finding on this point are incorrect and not in consonance with the settled law. (c) We also note that the adjudicating authority has refused to look at other contemporaneous imports, which a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Department has to first reject the transaction value and then follow the rules as laid down from rule 5 to 9 of the valuation rules in order to arrive at the value for discharge of Customs duty. From the entire records we find that this does not seen to have been done. In addition, we find that the documents which have come from the foreign source i.e. Indian embassy, Moscow cannot bring home the charge of undervaluation in the case of Bhatia Group as none of these documents which are relied .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Latest Notifications:

    Dated      Category

20-7-2017 Cus (NT)

18-7-2017 IT

18-7-2017 CE (NT)

18-7-2017 CE

18-7-2017 GST CESS Rate

15-7-2017 Kerala SGST

14-7-2017 Andhra Pradesh SGST

14-7-2017 Cus (NT)

14-7-2017 Cus

13-7-2017 Co. Law

13-7-2017 Co. Law

13-7-2017 ADD

13-7-2017 ADD

12-7-2017 Jammu & Kashmir SGST

12-7-2017 Gujarat SGST

12-7-2017 Gujarat SGST

12-7-2017 CGST Rate

12-7-2017 UTGST Rate

12-7-2017 UTGST Rate

12-7-2017 IGST Rate

More Notifications


Latest Circulars:

19-7-2017 Income Tax

18-7-2017 Customs

17-7-2017 Customs

14-7-2017 Income Tax

13-7-2017 Central Excise

13-7-2017 Customs

13-7-2017 Central Excise

13-7-2017 Customs

7-7-2017 Income Tax

7-7-2017 Goods and Services Tax

More Circulars



|| 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