TMI Blog2019 (2) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... licated by transactions occurring across boundaries of legal jurisdictions with differing policy practices - In the scheme of valuation, it is trite that the transaction value, evident from invoices, of the goods that are imported is to be the assessable value. Not unnaturally, there are presumptions for such acknowledgement which are embodied as combinatorial expressions in section 14 (1) of Customs Act, 1962. Any transaction that lacks any one or more of the qualifications prescribed therein should, necessarily, be externed from its ambit with recourse to section 14 (2) of Customs Act, 1962 and, thereby, within the coverage of Rules framed thereunder. It is clear from the records that the appellants had not been able to produce any evidence that would counter the grounds for discarding the declared value. To that extent, the declared values can be found to be unacceptable. However, the consequences of such discrediting is not an arbitrary determination of value. The provisions of Customs Valuation (Determination of Value of Imported Goods) Rules, 1988 require that sequential application to be apparent in such proceedings - Insofar as the valuation of goods, based on applicabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,18,996 besides being saddled with penalty under section 114A of Customs Act, 1962. The goods seized from the premises of M/s Modern Embroideries, with declared value of ₹ 9,23,603, was revalued to ₹ 20,02,985 with consequent differential duty of ₹ 2,64,236 recoverable on redemption of the goods by payment of fine of ₹ 5,00,000 in lieu of confiscation. The value of the goods imported by them in 2006-07 and 2007-08, declared at ₹ 71,08,076, was enhanced to ₹ 1,55,52,057 and subjected to differential duty of ₹ 21,52,729 upon redemption from confiscation on payment of fine of ₹ 31,00,000. Besides the penalty imposed on the importer under section 114A of Customs Act, 1962, the partner found himself to be liable to penalty of ₹ 2,00,000. The partner, impacted by both impugned orders, is also in appeal. 3. The case of the Directorate of Revenue Intelligence, which undertook the investigation, was that the suppliers of the imported goods had been persuaded to arrange documents evidencing prices to be far less than the market value of US $ 30-35 per kg to support the declaration of imports effected against bills of entry no. 762622/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of investigations. Learned Authorised Representative points out that the decision of the Hon ble Supreme Court in Surjeet Singh Chhabra v. Union of India [1997 (89) ELT 646 (SC)] holding that 3... It is true that the petitioner had confessed that he purchased the gold and had brought it.... Since the dispute concerns the confiscation of the jewellery, whether at the conveyor belt or the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross examine the witnesses is not violative of the principle of natural justice.... The confession, though retracted, is an admission and binds the petitioner. not only affirms the superfluity of cross-examination that had been sought from the lower authority by the appellants but also sanctifies the reliance placed on admissions in the statements to suffice for the findings. Furthermore, according to him, the Tribunal, in Sangeeta Metals (India) v. Commissioner of Customs (Import), Nhava Sheva [2015 (315) ELT 74 (Tri-Mumbai)], has held that 5.2 A confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also on record that certain payment was made voluntarily by them during the course of investigations. Therefore, we are not impressed with the plea made by the ld. Counsel that the first statement was retracted by the importer. in Rahul Ramanbhai Patel v. Commissioner of Customs (Import), Mumbai [2010 (256) ELT 424 (Tri-Mumbai)] is even more supportive of the case of Revenue with the statements of Shri Rajesh Gandhi containing unqualified admissions that had not been retracted at any stage. He submits that the decision of the Hon ble Supreme Court holding that 3..... The Customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner.... in re Surjeet Singh Chhabra is the seal of approval to discount the attempt by Learned Counsel to discredit the statements which have been relied upon in the impugned order for discarding the declared value and also to determine the enhanced value. 6. Before we proceed to adjudge the legality and propriety of the confirmation of differential duty, the confiscation and the imposition of penalties, the preliminaries must be dealt with. These pertain to the permissibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 7. We are told that the SLP filed against the above decision of the High Court was dismissed by the Apex Court [Venus Enterprises v. Commissioner-2007 (209) ELT A 61 (SC)]. 8. We also note that this Tribunal followed Jain Shudh Vanaspati Ltd (supra) and Venus Enterprises (supra) in Ford India Private Limited v. Commr of Customs, Chennai [2008 (228) ELT 71 (Tri-Chennai)]. On the other hand, in the cases of Hitaishi Fine Kraft Indus Pvt Ltd (supra) and Shimnit Machine Tools Equipment Ltd (supra), the decision of the Supreme Court in Jain Shudh Vanaspati (supra) was not considered. 9. In the result, we reject the plea made by the ld. Counsel that it was not open to the Department to reopen the assessment under Sec. 28 of the Customs Act. 8. Though in a different context, the ratio of the decision of the Tribunal in disposing off the appeal of Knowledge Infrastructure Systems Private Ltd Others v. Additional Director General, Directorate of Revenue Intelligence, Mumbai [final order no. A/86617-86619/2018 dated 31st May 2018] is that after the clearances of imported goods effected under section 47 of Customs Act, 1962, subject as it is to satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween an individual-importer and an organisational-importer; statements of an artificial person is an impossibility and statements of natural persons connected with offence allegedly committed by a legal person can only be corroborative of other evidences and never the bedrock. This opinion of ours is entirely consistent with the earlier decisions of the Tribunal in re Sangeeta Metals (India) and in re Rahul Ramanbhai Patel which clearly record the corroborative support of the statements relied upon in concatenation with other evidences. Such are not the facts and circumstances in the present proceedings where, admittedly, the statements are the sole basis of the entire proceedings. We, therefore, have no hesitation in rendering the finding that de hors the statements, no other evidence is on record to validate the show cause notice. 12. Nevertheless, we must also consider if the proceedings can be concluded on the basis of allegations alone; we make it amply clear that we do so only in the light of provisions pertaining to assessment of goods which place onus on importers in certain contexts and for certain purposes. Our examination below is limited only to such and with i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualifications prescribed therein should, necessarily, be externed from its ambit with recourse to section 14 (2) of Customs Act, 1962 and, thereby, within the coverage of Rules framed thereunder. In the context of the present dispute, that is Customs Valuation (Determination of Value of Imported Goods) Rules, 1988. Long after the decision of the Hon ble Supreme Court in Eicher Motors Ltd v. Commissioner of Customs, Mumbai [2000 (122) ELT 321 (SC)], mandating strict compliance with the Rules, was found to be too restrictive and, at times, repugnant to tax interests, rule 10A was incorporated to enable challenge to the declared value and requiring the importer to furnish evidence in support of their declarations. In line with the non-derogability of the fundamental concept governing the scheme of valuation, the newly incorporated rule was, to continue the allegory, limited to throwing down the gauntlet. It was for the importer to pick up the gauntlet and accept the challenge to joust. Lack of response to the notice issued under rule 10A of the said Rules clothed the proper officer with the authority to resort to the various rules sequentially in the said Rules. Doubtlessly, the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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