TMI Blog2019 (2) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... pared imports are nearly two months old, and also no similarity has been established vis a vis the country/ place from where imported and quality and quantity the same cannot be said to be contemporaneous imports. The rejection of the transaction value in this case and enhancing the value of the imported goods on the basis of so called contemporaneous imports cannot be justified in this case. Licensing of import of Marble Blocks - N/N. 36/2009-2014 dated 31.03.2010 - Held that:- From the reading of notification it is quite evident, that it provides for entire scheme of licensing of import of Marble Blocks. It not only provides for the scheme of licensing but allows the license to be issued subject to actual user condition. It also provides for a mechanism of application for grant of license and also for monitoring of the imports made in terms of the license. By undertaking the imports of Rough marble Blocks, without proper import license appellants have contravened the provisions of Foreign Trade Policy read with Foreign Trade Regulation Act, 1993 and thus have rendered the goods liable for confiscation under Section 111(d) of the Customs Act, 1962. Appeal allowed in part. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rough Marble Blocks. The goods were examined on first check basis by docks and the goods were found to be as declared. Table 1 Details of Bill of Entries Bill of entry Quantity MT Declared Price/MT Assessable Value Rs No Date FO B Euro CIF USD Declared Redetermined 3851199 21.06.11 227.82 200 332.75 3495283 3728914 3851216 21.06.11 127.45 200 317.66 1866682 2086077 3851193 21.06.11 50.90 200 317.71 745612 833121 3851558 21.06.11 75.96 200 317.86 1113242 1243299 3851209 21.06.11 79. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases the declared CIF value was much above the floor price prescribed by the DGFT. He relied on the following decisions - i. Marble Art [2013 (289) ELT 346 (T)] ii. Pushpanjali Silk Pvt Ltd [2009 (238) ELT 135 (T Chennai)] iii. Agarwal Marbles India (P) Ltd [2017 (350) ELT 262 (T)] iv. R K Marble Pvt Ltd [2009 (245) ELT 383 (T-Del)] 4.3 Learned Authorized Representative, submitted that Commissioner was correct in enhancing the value of the goods imported on the basis of the values noticed in case of contemporaneous imports. He referred to para 10 to 12 of the order of the Commissioner, where Commissioner has recorded the reasons for rejection of the declared value and for enhancement of the same. He also referred to para 8 of the order where Commissioner has specifically recorded that the goods have been imported in contravention of the restrictions imposed under the Foreign Trade Policy. He submitted that since appellant have imported the goods in contravention of the provisions of policy the goods have been rightly held to be liable for confiscation under Section 111 (d) and for the misdeclaration of value under Section 111 (m). Since the goods were rightly h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, it has been held that the transaction value has to be accepted subject to the exceptions contained in Rule 4(2) of the Rules by recording special or extraordinary reasons. Neither the adjudicating authority nor the Tribunal has recorded such reasons. Instead of referring to all the above decisions of this court, we may refer to a decision of this Court in the case of South India Television (P) Ltd. (supra) wherein it has been held: ..Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. The value is deemed to be the price at which such goods are ordinarily sold or offered for sale, for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or for offer for sale. Therefore, what has to be seen by the department is the value or cost of the imported goods at the time of importation, i.e., at the time when the goods reaches the customs b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd at the floor price of US$ 275 PMT (minimum unit floor price prescribed by DGFT). It is seen that the entire quantity of the goods covered vide 05 Bills of Entry detailed at para 1 above have been imported without any specific license. As the import of the impugned goods is restricted, such importation without possessing the valid import license is in violation of the provisions of the FTP 2009- 2014, thereby, rendering the impugned goods liable to confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (the FTDA, 1992, for brevity). 5.6 We do not find any challenge to the said findings recorded by the Tribunal. DGFT Notification No 36/2009-2014 dated 31.03.2010, clearly states about the restrictions and requirement of license for the import of Rough Marble Blocks . The relevant paragraphs of the said Notification are reproduced below: NOTIFICATION NO. 36/2009, DT. 31/03/2010 Policy for issue of import licences of Rough Marble Blocks for the Financial year 2010-11. S.O. (E) In exercise of powers conferred under section 5 of the Foreign Trade (Development and Regulation) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US$ 275 per Metric Tonne (MT), which shall be endorsed on all licences. III. Entitlement: The total import of Rough Marble Blocks under EXIM Code Nos. 25151100 and 25151210 will be subject to a ceiling of 3 lakh MT for the whole of the licensing year, 2010-11. Eligible unit will be entitled for an import licence on the basis of average indigenous sales turnover of processed marble slabs/tiles only, in the previous five financial years. The quantity so calculated will however be subject to the following overall ceiling: - (a) Unit having one marble gang saw machine will be entitled for a maximum licence of 3,000 MT of rough marble blocks; (b) Units having more than one marble gang saw machine will be entitled for a maximum licence of 3000 MT of rough marble blocks for the first gang saw machine, and 1500 MT of rough marble blocks for each of the additional marble gang saw machines. IV. All licences shall be subject to actual user condition. V. In this regard, Licence holders shall file monthly returns regarding imports made by them, to the concerned Regional Authority of DGFT. VI. The eligible applicants may file an application (after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Suchde stated that the importer is not able to obtain license because the DGFT is not issuing the licenses. Earlier they had license and imported accordingly. In order to keep the business running, they are continuing import. This submission made before the Commissioner itself shows that the appellants were aware of the licensing requirement, and had deliberately/ knowingly violated the same by continuing to import the said goods without obtaining the license. We do not merit in any submission of the appellants that they were acting under bonafide belief or the issue was in relation to interpretation of taxing statue. The decisions relied upon by the appellants do not serve their cause because none of the decisions says that in case of deliberate violation of the policy penalties should not be imposed. Even in the decisions referred by the appellant i.e in case of Agarwal Marbles India (P) Ltd R K Marble Pvt Ltd, supra, Tribunal has upheld the imposition of penalty. In our view the penalty of ₹ 10,00,000/- (Rupees Ten Lakhs only) imposed by the Commissioner in his order is not excessive and needs to be maintained. 6.1 In result we allow the appeal filed to the exten ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
