TMI Blog2021 (9) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish the charge of mis-declaration by referring to various evidence produced by the appellant to establish that prevailing international price of the LMS at the relevant time was as per their declared value. In any case appellants were always entitled to ask for a speaking order, for enhancement of the value of the consignments imported in November 2009, in terms of Section 17 (5) of the Customs Act, 1962. The entire issue of mis-declaration of value needs to be reconsidered by the authorities below and proper speaking order giving proper reasoning for the enhancement of value needs to given, just acceptance by the importer of the enhanced value in import of some consignment, solely cannot be ground for establishing the charge of mis-declaration against him - the matter remanded back to the original authority for reconsideration of matter against the two appellants - Appeal allowed by way of remand. - Customs Appeal No. 86051-86052 of 2015 - A/86722-86723/2021 - Dated:- 6-9-2021 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri C.K. Chaturvedi, Consultant, for the Appellant Shri Manoj Kumar, Deputy Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 on Shri Madhukunt R Agarwal , Director of M/s Agrasha Alloy Trading Pvt. Ltd. This amount has to be recovered from the balance of Bank Guarantee amount, if any, given by the importer. 3.8 Penalty of ₹ 1,00,000/-(Rupees One Lakh only) is imposed under Section 112 (a) of the Customs Act, 196) on Shri Rajesh Agarwal, Director of M/s. Viking International , FZE. 3.9 Penalty of ₹ 1,00,000/-(Rupees One Lakh only ) is imposed under Section 114AA of d1e Customs Act, 1962 on Shri Madhukant R Agarwal, Director of importing firm M/s Agrasha Alloy trading Pvt. Ltd. as the importer knowingly or intentionally made, signed and/ or used or caused to be made, signed or used declarations, statements or documents which are false or incorrect in material particular , in the transaction of the impugned import business for the purposes of evading the duty. 3.10 Penalty of ₹ 1,00,000/-(Rupees One Lakh only ) is imposed under Section 114AA Customs Act, .L962 on Shri Rajesh Agarwal, Director of M/s.Viking International , FZE. as he knowingly or intentionally made, signed and/ or used or caused to be made, signed or used declarations, statements or documents which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 28 of Customs Act, 1962. The goods mentioned at Annexure A (to show cause notice) for which appellant had declared value of US$ 53,334/-, equivalent to ₹ 25,77,027/- and having actual transaction value of US$ 86468/-, equivalent to ₹ 41,73,804/- be not confiscated under Section 111 (d) and (m) of Customs Act, 1962 read with rule 11 and 14(1) of the Foreign Trade (Regulation) Rules, 1993 and Section 11(1) of the Foreign Trade (Development and Regulation) Act, 1992, as the goods have been mis-declared with reference to value. Why penalties under various sections of Customs Act, 1962 (as applicable) on the various persons involved in the act of mis-declaration of value should not be imposed. 2.6 This show cause notice was adjudicated by the Commissioner as per the impugned order. Aggrieved by the order, appellants are in appeal before us. 3.1 We have heard Shri C K Chaturvedi, Consultant, for the Appellants and Shri Manoj Kumar, Deputy Commissioner, Authorized Representative for the revenue. 3.2 Learned counsel for the appellant submits that para 20(iii) of the show cause notice wherein it is stated M/s. Agrasha Alloy Trading Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price during the relevant period. This floor price was applied wherever imports failed to produce the manufacturer s invoice of imported goods and were unable to explain the lower value of imports. Thus the said M/s. Agrasha Alloy Trading Pvt Ltd had undervalued the imports of the consignments mentioned at Sr.No.1 2 of Table III and Sr.No.1 2 of Table IV. the para 12 of the show cause notice is illogical for the reasons as below: a) The floor price of USD 300 PMT is for HMS and not LMS. b) This is not as per prevailing international price as can be seen from the contemporary issue of Metal Bulletin. c) There is no manufacturer s invoice for scrap. d) This is a kind of minimum customs value which has no legal sanctity in terms of Rules and Regulations. e) This is arbitrarily applied whenever transactions are below these arbitrarily fixed values. In para 21 of the show cause notice, DRI states that the total duty amount leviable is ₹ 2,04,814/- and that differential duty amount of ₹ 1,03,356/- is to be recovered. The adjudicating authority has reproduced these figures in his order mechanically without even taking into consideration tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. and used to sell the same in the local market or to the various firms in India on high seas sales by issuing fabricated / undervalued invoices prepared in the Mumbai office of Shri Raiesh Agarwal on behalf of M/s. Viking International by suppressing the actual transactional value to evade customs duty. It is seen that the goods were shipped from the load ports located in Europe, South Africa. USA etc directly to Indian ports and did not touch Fujairah / 3ubai port any time during the voyage. I find that the investigations had revealed that M/s. Viking International, Fujairah, (UAE) was not having any office premises in UAE and only having a Post Box Number in UAE for communication. 10. I find that the investigation has proved that Shri Rajesh Agarwal as proprietor of M/s. Viking International has been receiving the invoiced amount in his Firm's Dubai account through banking channel and the differential amount i.e. the actual invoice vale e met the fabricated / under invoiced value was used to be received in cash and the differential amount so collected was being remitted by him to the said Dubai account through a hawaladar. 11. I find that the appellant no 1.h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue stand established against them. The admission made by the appellant in respect of two bills of entries filed in November 2009, has been used against them to establish the charge of mis-declaration against them. 4.5 The two consignments in respect of which the duty was already paid on the assessed value as enhanced were also confiscated along with the other two consignments. The action of confiscation of the goods which have been cleared on payment of duty as assessed, are proposed for confiscation, for the reason that appellant have admitted to enhancement of value. 4.6 The matter do not rest here, while enhancing the value, the show cause notice takes into account all the four consignments, and enhances the value of all four consignments from US$ 53,334/-, equivalent to ₹ 25,77,027/- and having actual transaction value of US$ 86468/-, equivalent to ₹ 41,73,804/-. On the enhanced value of all four consignments the duty has been demanded as per the show cause notice at para 21 (ii) which is less than the total duty paid by the Appellant on the two consignments imported in November 2009. The said para of the show cause notice is reproduced below: (ii) the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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