TMI Blog2020 (2) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... SHIP BREAKERS VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [ 2010 (10) TMI 18 - SUPREME COURT] was rendered in the context of the agreement between the shipper and the importer being conditional upon the damage to the vessel before landing and, hence, cannot be disassociated from its acceptability as being at the time and place of importation. There is no evidence on record that the negotiated price has been contrived to evade duties of customs. In the circumstances of being close to a distress sale, the absence of willing buyers for goods under investigation and there being no evidence of additional consideration, the finding of misdeclaration cannot be sustained. The reason for confiscation under Section 111(d), to be invoked for importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of crystal melamine imported from M/s. Petrochemicals Corporation as well as the confiscation, redemption fine and penalties imposed. 2. Briefly, the facts, as stated by Learned Counsel for appellant, are that the appellant-firm, acting as indented agents, procured hundred metric tons of the said goods for M/s. Shlok Chemicals who, being disinclined to accept the consignment, did not file bill of entry for the same after arrival in July 2008. It transpired from the investigations that the pro forma invoices issued for the impugned consignments indicated the value of 1137 per metric ton. Finally, the appellant herein was persuaded to accept the consignment for a value of 800 per metric ton that in pursuance of which the shipper is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated in Section 14 of Customs Act, 1962 and, in the absence of any other evidence of additional consideration, the mandate of law required acceptance of the declaration for computation of duty liability. Reliance is placed in the decision of the Hon ble Supreme Court in Choudhary Ship Breakers v. Commissioner of Customs, Ahmedabad [2010 (259) E.L.T. 161 (S.C.)] which held that the price paid by an importer to the seller is to be the transaction value for valuation of goods. Reliance is also placed on the decision of the Tribunal in Gilani Exporter Corporation v. Collector of Customs, Bombay [1996 (83) E.L.T. 409 (Tribunal)], in Excel Glasses Ltd v. Commissioner of Customs, Trichy [2004 (166) E.L.T. 496 (Tri. - Bang.)] and in V.K. Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pendency of the goods for assessment required recourse to the statutory provision invoked by the original authority which is intended for duty that has not been paid, short-paid or has been erroneously refunded. None of these situations can apply to a bill of entry that is pending for assessment. Furthermore, with the withdrawal of recourse to Section 28, the identical circumstances permitting the invoking of Section 114A of Customs Act, 1962 could no longer be cited. 8. It is seen that the bill of entry was filed by the appellant upon failure of the consignee in the original bill of lading to do so. There is nothing on record to evidence that this was pre-arranged mechanism to overcome the duty liability arising from the terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ani Export Corporation set aside the enhancement with reference to Section 23 of Customs Act, 1962 which applies when the remission of duty is envisaged. In re Excel Glasses Ltd., the Tribunal was convinced of the acceptability of the reduced price of the high sea sale transaction which took place about one year after the shipment arising from diversion of the ship for an unduly long time. In re V.K. Industrial Corporation Ltd., the Tribunal noted the conformity of the declared price with the prevailing international prices and the absence of any evidence of contemporaneous imports at higher prices. The facts in the present dispute do not conform to any of the situations presented in the decisions cited by Learned Counsel. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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