9911796707
TMI Blog2019 (12) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners from distributors located at Singapore. On intelligence of undervaluation by the appellant, investigations were conducted. Pursuant to enquiry, show cause notice dated 14.03.2013 was issued on these appellants and two others namely Shri Ajit Singh Chadha and Shri Manu Chopra. The notice alleged that the appellant undervalued/ misdeclared the value of the goods for custom duty purposes. The value was proposed to be enhanced (including for past imports) with proposal for confiscation as well as imposition of penalties on the appellant and others. The show cause notice was adjudicated on contest by Order-in-original No. 10/KAM/Commissioner /2013 dated 31.12.2013 whereby the value of goods imported under fourteen past Bills of Entry were held to be undervalued and value redetermined. The value of the goods under seizure (from godown) was also re-determined. The MRP declared was also rejected and re-determined. Further, the goods under seizure were ordered to be confiscated with option to redeem on payment of fine. Differential duty was determined at Rs. 1,12,72,494/- under Section 28 of the Act alongwith equal amount of penalty on M/s M. C. Overseas under Section 114A and furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of the appellant that the quantities imported and the country of export were all different. The commercial levels in the transactions were also different. We are of the opinion that this requires a more detailed examination. The impugned order holds that the air-conditioners compared are of same modals. This alone will not be sufficient to satisfy the requirements of comparable commercial level of transactions. 10. One more point strongly contested by the appellant is denial of exemption under notification no.29/2010-cus dated 27.02.2010. The exemption was denied only on the ground that no supporting evidence was submitted by the appellant by way of sale bills, payment of VAT, etc. We are in agreement with the appellant that this is not one of the conditions stipulated in the said notification. 11. The appellant also pleaded that there is no violation of Customs Act, 1962 even if it is held that Shri Manu Chopra lent his IEC to other two appellants. The reference was made to the newly introduced provisions under Section 2 (3A) of the Customs Act, 1962, which defined "beneficial owner". The appellant claimed that this legal provision has no application during the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore clearance and in some of the Bills of Entry the value was enhanced/ loaded wherever found necessary by the Department, that the belated charge of undervaluation is only based on the change of opinion. Reliance was placed on the ruling of the Apex Court in Uniworth Textiles Ltd. v. Commissioner - 2013 (288) ELT 161 (SC) and also of this Tribunal vide final Order No. 56383-56385/2017 dated 01.09.2017. Further urged that the appellant imported airconditioners in bulk quantity from Singapore and Dubai from the distributors and payments were made through the banking channels on the basis of invoices issued by the sellers/ exporters. Further, in absence of any evidence to show that appellant had remitted any amount over that, as specified in the invoice, the rejection of transaction value is uncalled for and demand of differential duty could not be made. Further, urged that the appellant have nowhere admitted the allegation of undervaluation in the statements recorded under Section 108 of the Act. 5. It was also urged that Revenue has not brought any cogent evidence to support the allegation of undervaluation. The allegation based on import value by M/s EGPL and on the basis of NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Ajit Singh (in INR) MRP declared in the Bill of Entry (in INR) 1 2 Ton Window AC 21,000 32,990 (at S. No. 28 of Annexure A) 2 1.5 Ton Split AC 30,000 34,000 (at S. No. 1 of Annexure A) 3 2 Ton Split AC 34,000 45,900 (at S. No. 17 of Annexure A) 8. It was further urged that the MRP declared in the Bill of Entry was much higher than the sale price on which the goods were actually sold. Further, there is no evidence brought on record by Department that the appellant have sold the imported goods/ airconditioners at higher retail price than the declared MRP. 9. Learned Commissioner vide the impugned order observed that the directions in the Final Order of this Tribunal, in remand are as follows:- "(i) Copies of Bills of Entry filed by M/s EGPL and data records of NIDB were not provided to the Noticee despite request for the same made by them. (ii) MRP declared by the Noticee was higher than those of M/s EGPL. (iii) That comparison with the same model of air conditioners was not sufficient and the requirement of comparable level of transactions should have been fulfilled. (iv) Exemption of Notification No.29/2010-Cus dated 27.2.2010 (exemption fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and sales invoices. Further, the investigation reveal import of identical goods by M/s EGPL at significantly higher prices. Thus, there was enough justification for doubting the truth and accuracy of the declared value and thus the value was rightly rejected. 13. As regards the issue of determination of value of the imported goods the value has been proposed to be re-determined under Rule 4 which is the first rule in sequence. Therefore, question of not following the sequence as urged by the appellant is not found. Further, the goods imported by the appellant are identical to those imported by M/s EGPL. Further, the declared value of M/s EGPL as regards to contemporaneous import have been disputed on the ground that terms of import/ sale were different. Further, the source of import is different as M/s EGPL has imported from the manufacturer whereas these appellants have imported from distributors located at Singapore /Dubai. Further, M/s EGPL was providing to the customers free copper tubing, free installation and commissioning and therefore the terms of sale was different. Further, the commercial level in the transaction of the appellant as compared to M/s EGPL is different. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opting the assessable value as per the contemporaneous import by M/s EGPL. Against a total declared assessable value of Rs. 6,35,98,877/- and thus worked out the differential duty at Rs. 18,19,448/-. Learned Commissioner also rejected the declared MRP and re-determined the same based on the higher MRP of identical goods by M/s EGPL. Further, observed that the MRP or selling price stated by Shri Ajit Singh Chadha in his statement dated 19.03.2012 is an average sale price and not the actual sale price. Further, observed that the actual retail sale price in absence of documents is not possible to examine vis-a-vis the declared MRP. Learned Commissioner further on comparing the MRP as declared by the appellant as per Annexure-A, to the show cause notice found the same to be higher in many cases than MRP declared by M/s EGPL. He was pleased to hold that the allegation of declared lower MRP is unsubstantiated and cannot be sustained, thus dropped the said allegation. 17. As regards exemption from payment of SAD, in view of the VAT/ Sales Tax under Notification No. 29/2010-Cus. it was observed that the appellant have not produced any sales bills / evidence to show that they were depositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to the three Bills of Entry have not been revalued, seizure of 306 pieces pertaining to these bills of entry is not sustainable; (iii) Differential duty of Rs. 18,19,448/- was confirmed under Section 28(4) alongwith interest and further appropriating Rs. 11,70,865/- deposited during investigation. Further, penalty of Rs. 18,19,448/- was imposed on M/s M. C. Overseas under Section 114A. Further, penalty of Rs. 20 lakhs each on Shri Rohit Sakhuja and Shri Ajit Singh Chadha was imposed under Section 112(a) of the Act. 19. Being aggrieved, the appellants are before this Tribunal. 20. Learned Counsel Shri Ashish Batra appearing for the appellant urges that the show cause notice is time barred as regards the fourteen past 14 Bills of entry which were filed and assessed more than twelve months prior to the date of show cause notice. The allegation of suppression of valuation by Revenue is based on change of opinion and based on the information which was already on record. For change of opinion, extended period is not available to Revenue. It is further urged that the Bills of Entry were filed based on the documents of import. None of the documents have been found to be sham or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be redetermined by relying on similar materials/data. 23. It is further urged that Rule 4 prescribes for consideration of the import value of identical goods during the relevant period pursuant to rejection of transaction value. Further, Rule 4(3) provides that in case of more than one transaction value of identical goods is available, then the lowest of such value shall be taken. Further, from the NIDB data for the relevant period, it is evident that identical goods were cleared at a price lower than the price declared by the appellant. Thus, the reliance by Revenue on the price declared by M/s EGPL is perverse and thus the enhancement is erroneous and fit to be set aside. 24. Learned Authorised Representative for the Revenue have relied on the impugned order. 25. Having considered the rival contentions, we find that the facts on the basis of which the allegation of undervaluation have been made, like NIDB data or import value of M/s EGPL were available to Revenue all throughout. It is admitted that M/s EGPL is also a regular importer of O-General ACs directly from the manufacturer located at Thailand. Accordingly, the demand with respect to 11 past bills of entry which we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
