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TMI Blog1997 (9) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... d) while mother Board of Japanese/Taiwanese origin. Goods were shipped from Singapore. 1.3 On perusal of the import documents of the instant consignment and after consulting experts in the trade and past record of valuation maintained by the Appraiser, value of the goods was enhanced to S $ 262 in respect of mother (pentium) Board as recorded in file, consent of the appellant Co.'s Director Shri Bimal Khemka, second appellant herein, was obtained, orders of the Assistant Commissioner (A.C.) A.Cg.C under the control of Commissioner of Customs (C.C.), Calcutta was obtained, and assessment was made accordingly. The appellants agreed to pay duty of ₹ 1,92,422.30 on such enhanced value as against the duty of ₹ 99107.00 payable on the declared value. 1.4 It is alleged by the Revenue that on investigation, it was found that the appellants vide B/E dated 10.5.95 had cleared another consignment of the following goods :- Item/description Qty Unit FOB value decld. Enhanced (S.$) (S.$) HP Printers C2003A 50 210 306 Epson 1070 Printers 5 180 not enhanced Epson 1170 Printers 5 200 do (The goods were of Japanese origin. Shipment was from Singapore. Invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of value. In these circumstances, the ld. consultant submits an adjudication on valuation of the goods by a competent officer has already taken place and there cannot be a second adjudication on the self-same issue between the same parties in respect of the same consignment. It is immaterial whether the goods have been released or not by the Customs authorities. It will be an adjudication twice over on the same cause of action. This order could be revised in accordance with the procedure under Section 129D and not otherwise, on an order passed by the C.C., Calcutta and not by C.C. (P) and on filing an application before C.C. (Appeals). This argument, he submits, is equally valid for the earlier consignment already cleared on adjudication of valuation of goods by the concerned A.C.C.. He relies on the aforesaid proposition on Bombay High Court's and Tribunal's judgement in the cases (i) U.O.I. Vs. Popular Dye Chem - 1987 (28) ELT 63 (Bom) and (ii) Ajay Exports Vs. C.C., Madras - 1986 (26) ELT 873 (Trib) respectively. 2.2 It is further urged that the C.C. (P) including the A.C.C. (R & I) working under the former have no role whatsoever in the assessment procedures of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the officers of the Custom House have allowed the cargo or baggage to be cleared after examining the related Bills of entry or baggage declaration but the officers of the Preventive Collectorate consider that these require further investigation, they should bring such cases to the notice of the concerned Dy. Collector of the Custom House immediately, which should also be followed up with a written note. In all such cases, the concerned Dy. Collector of the Custom House would take immediate necessary action to review the earlier action taken by the Custom House. In rare cases when the concerned Dy. Collector is not available, the matter may be directly brought to the notice of the Collector of Customs himself keeping in view the urgency involved. The procedure outlined above would be strictly followed by all the officers and staff of both the Collectorates and any deviation therefrom would be strictly viewed. Sd/- (R. GOPALNATHAN) COLLECTOR OF CUSTOMS, CALCUTTA & COLLECTOR OF CUSTOMS (PREVENTIVE) WEST BENGAL 3.1 Ld. SDR, Shri T. Prem Kumar urges that C.C. (P), West Bengal and the officers working under him have jurisdiction over the whole of State of West Bengal. In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted by an officer of Customs in terms of that Section. A Bill of Entry was filed in the A.Cg.C and noted therein. The goods were examined and assessed after due application of mind with particular reference to the value of the imported goods by the concerned A.C. All these officers, it is not disputed, validly exercised their jurisdiction conferred upon them under the Act and that these officers were working under the control of the C.C., Calcutta and not under C.C. (P), West Bengal. It is after this stage that A.C.C. (R & I), either on his own initiative or on the direction of C.C. (P), appears to have written a letter to the officers of the A.Cg.C not to release the consignment. This initial action of the A.C.C. (R & I) in our view is illegal in as much as it ousts, in this case, the jurisdiction of the officers working under the control of C.C. Calcutta. We do not say that such a transfer of a case, in any peculiar facts and circumstances cannot be done at all. It can be done by a superior authority like the C.B.E & C or Central Govt. in exercise of their powers or by devising a general suitable working arrangement between officers of equal rank i.e. C.C. (P), West Bengal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice. This fact of painting of the stainless steel containers was allegedly within the knowledge Jain Shudh. In the instant case, submits the ld. consultant, allegation of fraud is prima facie unsustainable on the evidence relied upon by the C.C. (P) West Bengal in his show-cause. The appellant could not be aware of that evidence, collected after investigation by the Preventive Officers. In these circumstances, it is strongly urged that procedure under Section 129D should have been followed rather than issuing a fresh show-cause notice under Section 124. 5.2 Opposing the contention, ld. SDR submits that issuance of notice under Section 124 is now sanctioned by the Apex Court's ruling in Jain Shudh (supra). It has been further held, he submits, that notice under Section 28 is valid after clearance of the goods under Section 47 of the Act. 5.3 We have heard both sides. We note that the show-cause notice issued by C.C. (P) is not a notice under Section 28 simpliciter. It had also proposed action for confiscation of goods and for imposition of penalty. But for a decision whether notice under Section 124 is a valid exercise of power on the ratio of Apex Court's ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the provisions of clause (i) above, the value shall be determined by proceeding sequentially through rules 5 to 8 of these rules." 6.4 Rule 4 defines transaction value and the conditions for its acceptance. Sub-rule (1) states that "the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of rule 9 of these rules." Sub-rule (2) of rule 4 lays down the conditions for acceptance of the transaction value. All the conditions are negative conditions. In other words, if any of the conditions is satisfied, transaction value will not be acceptable. If none of conditions in sub-rule (2) is satisfied, then transaction value shall be acceptable. 6.5 From the definition of transaction value in sub-rule (1) of rule 4 of the CVR, 1988, it is clear that when the goods are sold for export to India, the price actually paid or payable shall be the transaction value, because it is not anybody's case here that any of the provisions of rule 9 ibid apply in this case calling for adjustment of the price at which goods have been sold i.e. the price which is paid or payable. Price a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out that the authority cannot make a capital out of the consent to enhancement of values given by the appellant. That consent was given to avoid further loss of profit to the appellant, since the goods were required urgently. Resisting the proposed enhancement in values would have resulted in long drawn litigation and consequent loss of business. By consenting to enhancement, appellant did not agree that the declared prices were not genuine. 6.10 We have carefully considered the pleas advanced from both sides. We note that there is no evidence of any clandestine remittance of extra money than that shown in the invoice, or of any other consideration between the appellant and the seller. No mutuality of interest in the business of each other has been shown. There is no finding by the adjudicating that any of the conditions in sub-rule (2) of rule 4 has been satisfied for discarding the transaction value. It is incorrect for the adjudicating authority to hold that if any document referred to in rule 10 (1) of the CVR 1988 is not furnished by an importer, then the value declared as transaction value can be discarded. There is nothing in the language of rule 10 either expressly or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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