TMI Blog2019 (6) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment were finalized during May 2010 to January 2011 and all the information required for assessment was provided by the appellant and therefore the allegation of suppression of fact made on 29 May, 2015 are not sustainable. Therefore, the proceedings are hit by limitation. Appeal allowed - decided in favor of appellant. - Customs Appeal No.70379 of 2017 & Customs Appeal No.70023 of 2018 - FINAL ORDER NO. 71124-71125 / 2019 - Dated:- 18-6-2019 - Mrs. ARCHANA WADHWA, MEMBER (JUDICIAL) AND Mr. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri K.K. Anand, Advocate for Appellant Shri Gyanendra Kumar Tripathi, Authorized Representative for Respondent ORDER Above stated two appeals are taken together for decision since both of them are arising out of common impugned Order-In-Original No. 03/PR.COMMR./NOIDA-CUS/2017 dated 28 February, 2017 passed by Principal Commissioner of Customs, Noida. 2. Brief facts of the case are that the appellants imported 14 inch color picture tubes from M/s Chunghwa, Malaysia. During the period from May 2010 to January 2011, appellant imported various consignment of 14 inches co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a show cause notice dated 29 May, 2015 was issued by invoking extended period of limitation by raising a demand by invoking extended period of limitation under Section 28 of the Customs Act, 1962 for recovery of anti dumping duty amounting to ₹ 7.38 crore in terms of said Notification No.50/2009-Customs. It was alleged that there was suppression of facts by the appellant. Further it was stated in the said show cause notice that one M/s J.R. International were importing fabric and undervalued the same for evasion of customs duty and the difference between the actual price and price indicated in invoice was received by overseas M/s Tessuti (HK) Co. Ltd., Hong Kong through hawala channel and such payments were made to M/s Tessuti (HK) Co. Ltd. by M/s Chunghwa, Malaysia, from whom M/s J. R. International imported colour picture tubes by overvaluing to avoid imposition of anti dumping duty. It was stated by proprietor of M/s Tessuti (HK) Co. Ltd., Hong Kong that M/s Tessuti (HK) Co. Ltd., Hong Kong had entered into an agreement with M/s Chunghwa, Malaysia wherein M/s M/s Chunghwa, Malaysia was to pay commission at the rate of US$ 3.40/piece of colour picture tube to M/s Tessuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. The facts of overvaluation of CPTs imported from M/s.Chunghwa Picture Tubes, Malaysia have been further corroborated by statements of Shri Dundeep Devgun, representative/commission agent of M/s.Chunghwa Picture Tubes, Malaysia in India and Shri Vinay Agarwal Shri Umesh Gulhar. Declared values are acceptable only if they are the sole consideration for sale and correctly reflective and price payable. 4. Appellant had sought for cross-examination of persons on whose statement reliance was placed in the said show cause notice. The same was denied by learned Original Authority. The appellant contended before the Original Authority that their case of import had nothing to do with evasion of anti dumping duty by M/s J.R. International and that modus operandi adopted by M/s J.R. International has no relevance in case of import by the appellant and that the imports by M/s J.R. International were made in the year 2009 and the previous period whereas the imports made by the appellant were from May 2010 onwards and anti dumping duty was imposed w.e.f. 24 July, 2008. It was contended before the Original Authority that appellant imported best quality picture tube available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of present proceedings was not available to Revenue and they have relied on ruling by Hon ble Supreme Court in the case of M/s Priya Blue Industries Ltd. V/s Commissioner of Customs (Preventive) reported at 2004 (172) E.L.T. 145 (S.C.). They have further submitted that all the information required for assessment was submitted during the relevant period from May, 2010 to January 2011 and therefore the allegation of suppression leveled on 29 May, 2015 are not sustainable. Further the entire demand in the show cause notice is beyond the normal period of limitation and in the absence of any suppression extended period is not invokable and since the entire demand is for extended period the demand is not sustainable. He has further submitted that during the investigation no evidence has come to notice that there was any arrangement of overvalued differential amount to be flow back to the importer. The allegation in show cause notice was for overvaluation and show cause notice made a reference to an agreement between M/s Tessuti (HK) Co. Ltd. Hong Kong and M/s Chunghwa, Malaysia for issue of debit note in the case of M/s J.R. International whereas no such evidence was found in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
