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M/s Intersales Versus Commissioner of Customs

2016 (10) TMI 294 - CESTAT BANGALORE

Provisional release of goods - valuation - assessable value - rejection of Declared value - confiscation of imported goods - imposition of redemption fine and penalty u/s 112(a) of the Customs Act 1962 - earth moving equipment - of Japanese origin - As per Rule 10((1)(b) of the Customs Valuation (Determination of Prices of Imported Goods) Rules 1988, the importer or his agent shall furnish the invoices of the manufacturer or producer of imported goods, in cases where goods are imported from or t .....

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ant prayed for compensation - Held that: - compensation granted by the Hon ble High Court is under the writ jurisdiction of the Hon ble High Court which is a constitutional court whereas the Tribunal does not have the power to grant compensation in such cases - compensation cannot be granted. - Mis-declaration on the part of appellant proved - Penalty imposed on the appellant held to be on higher side and the penalty now reduced to ₹ 25,000/- appeal rejected on other grounds - decided .....

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and also appropriated the sale proceeds towards the duty liability and also imposed penalty of 2,00,000/- on the appellant under Section 112(a) of the Customs Act 1962. 2. Briefly the facts of the case are that the appellant filed a bill of entry No. 004350 dated 19.02.1993 for home consumption through their clearing agents M/s Pavan Enterprises, CHA for clearance of three cases of earth moving equipment. The goods were received against the Master Airway Bill No. 22029247030 dated 02.02.93 and 2 .....

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Japan. From this it appeared that the impugned goods of Komatsu manufactured in Japan are imported from USA through a dealer in USA. Being the parts of Komatsu Japan, the contemporaneous price list No. 36 in force from November 92 was verified. According to the price list, the total FOB value of all the items imported against bill of entry dated 19.02.93 works out to 63516.17 US $ whereas importer has declared the value as 32702.42 US$. The difference between the invoice price and the price list .....

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urer producer. In the present case though the goods are declared as of Japanese origin they have neither produced the country of origin certificate nor manufacturer s invoice to substantiate the invoice price. There is a vast difference between the invoice value and the manufacturer s price list value. Therefore the declared invoice price could be accepted as the correct value for the purpose of Section 14 of the Customs Act 1962. 3. M/s Bharat Earth Movers Ltd (BEML for short) Bangalore were ma .....

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rice list price. As such the value of impugned goods imported in the present case has to be determined under Rule 5 of the Customs Valuation Rules 1988 on the basis of transaction value of identical goods offered for sale as defined under Rule 2(c) of Customs Valuation Rules 1988 in the ordinary course of business in the International Trade. The total duty on the declared value was assessed as ₹ 19,76,308/-. The duty on the basis of value arrived on identical goods works out to ₹ 30, .....

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of Entry they have not filed any country of origin certificate to substantiate their declaration. The total duty assessed for the bill of entry dated 19.02.93 on the basis of declared value was ₹ 9,90,392/- whereas the appropriate duty on the basis of M/s KOMATSU s invoice price list as per investigation circular works out to ₹ 16,51,291/. After the investigation, the appellants were issued two show-cause notices dated 19.5.93 to show cause as to why the declared invoice value of &# .....

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,211/- CIF (b) Bill of Entry No. 4354 Rs 10,75,700/- CIF. The collector also ordered for confiscation of the goods and allowed redemption on payment of ₹ 1,00,000/- and imposed a penalty of ₹ 50,000/- on the appellant under Section 112(a)(ii) of the Customs Act 1962. Aggrieved by the said order appellant filed appeal before CESTAT and the Tribunal vide its order dated 31.01.2002 remanded the case back to the adjudicating authority to examine the issue afresh and to pass appropriate o .....

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ppellant is before us. Heard both the counsels and perused the records. Learned counsel for the appellant submitted that the impugned order is not sustainable in law and the learned Commissioner has not dealt with all the submissions made by him and the impugned order is more or less reproduction of the first order dated 5.10.1993. He further submitted that in spite of the order of the Hon ble High Court, the goods were not released to him and thereafter the same has been auctioned without givin .....

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Co., the authorized distributor of Komatsu USA filed on 14.09.2003 which revealed that the goods were supplied from USA. He further submitted that the learned Commissioner erred in adopting the price to BEML as they were also engaged in manufacturing Komatsu parts and their agreement is different from the appellant s transaction. He further submitted that the Commissioner has not considered the various case laws relied upon by the appellant. On the other hand learned A.R. strongly defended the o .....

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t. 4. After considering the submissions of both the parties and perusal of the entire record, we find that the appellant approached the Hon ble High Court for provisional release of the goods confiscated by the Revenue and in spite of the order by the Hon ble High Court, the goods were not released and the same were subsequently auctioned without issuing the notice to the appellant. In support of his submission, the appellant relied upon the following decisions to contend that he is entitled to .....

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