TMI Blog2022 (10) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... due to under valuation made by hawala has also been proved by the Revenue - there are no reason to interfere in the impugned order - appeal dismissed. - CUSTOM Appeal No. 108 of 2012 WITH CUSTOM Appeal No. 318 of 2012 - FINAL ORDER NO.A / 11298-11299/2022 - Dated:- 27-10-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Shyamsunder Takalkar , G.M for the Appellant Shri G. Kirupanandan, Superintendent (Authorized Representative) for the Respondent ORDER The brief facts of the case are that the appellant have imported furniture from China. On the intelligence gathered by the DRI officers they have conducted detail investigation. A per outcome, it was found that under a systematic modus operandi, the appellant in collusion with the Chinese counterpart have undervalued the furniture to the extent of 17% and the undervalued amount have been transacted through hawala. Therefore, there was a clear admission of under valuation of the imported goods. Accordingly, the Adjudicating Authority passed the following order: (a) I reject the declared assessable value of the goods imported under B/E No.237699 dated 30.11.2010 as mentioned su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of Rs. 50,000/- (Rupees Fifty Thousand only) each on (1) Shri Naresh N. Garg, Ahmedabad (2) Shri Vivek Pawan Kumar Agrawal, Ahmedabad (3) Shri Nitesh Garg. Properitor, M/s. S. R.Industries, Hong Kong, residing at Ahmedabad and (4) Shri Prakash Laxmandas Lalchandani, Ahmedabad, under Section 112 (a) of the Customs Act, 1962. Being aggrieved by the above Order In Original appellants filed following appeals before the Commissioner (Appeals): Sr. No. Appeal No. Name of the Appellant OIO No. Date Amount Involved 01 309/AHD/11 M/s. West Wing Infrastructure P. Ltd. 130, Kalpma Complex, Near Memnagar Fire Station, Navarangpura, Ahmedabad- 380009 36/Addl. Commissioner/ICD Sab-DRI/O A/2011 dated 28.09.2011 Duty Rs.3,08,111/- (paid) Penalty Rs. 3,08,111/- R.F. Rs. 8,00,000/- 02 310/AHD/11 Shri Kalpesh D. Prajapati, Director, M/s. West Wing Infrastructure P. Ltd. 130, Kalpma Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the subject appeals are taken up for disposal by this common order. 8.1 Holding prima facie that the balance of convenience is in favour of the revenue and the interest of revenue is safeguarded in as much as the appellant has furnished a bond for Rs. 18,00,000/- supported with a bank guarantee for Rs. 4.50.000/- at the time of provisional release of the goods. and further an amount of Rs. 4.80.000/- at the initial stage has been paid by the appellant. I. in exercise of powers conferred by section 129E of the Customs Act, 1962, grant complete waiver of pre-deposit and proceed to decide the main appeal on merit. 8.2 Now coming to the main issue, I find there is admittedly no denial that the impugned goods were grossly undervalued as the appellant No.2, Shri Kalpesh D Prajapati, Director of M/s. West Wing Infrastructures Pvt. Ltd. Ahmedabad, had himself in his statement recorded under Section 108 of the Customs Act, 1962 on 13.11.2010, categorically admitted that they had imported the impugned goods at undervalued price with intent to pay lesser import duty. This statement of the appellant has not been retracted at any point of time and therefore there is no reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the transaction value is liable to be rejected in terms of Rule 12 of the Customs Valuation (determination of price of imported goods) Rules, 2007. Once transaction value is rejected the value shall be determined by proceeding sequentially through Rule 4 to 9 of the Customs Valuation (determination of price of imported goods) Rules, 2007. The value of goods cannot be determined under Rule 4 in absence of value of identical goods. Similarly, the goods cannot be determined in absence of value of similar goods, as prices would vary depending upon the brand, make and design etc. Further the value cannot be determined under Rule 7 (Deductive Value) and Rule 8 (computed Value) as no data is readily available with regard to the unit price at which identical or similar imported goods are sold in the greatest aggregate quantity to persons who are not related to the sellers in India and further the cost or value of materials and fabrication or other processing employed in producing the imported good is also not available. Accordingly, the value is to be determined in terms of Rule 9 of the Customs Valuation (determination of price imported goods) Rules, 2007. The importer vide his stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in Atlas Casting Metal Impregration w/s. Commissioner of Customs, Hyderabad [2005(68) RLT 384 (Ban)] wherein the Hon'ble Tribunal has held that although normally, declared value cannot be rejected without a valid ground stated in Rule 4(2) of the Valuation Rules but in cases where it is found that the goods are mis-declared, the declared value can be rejected and the value could be arrived at for the purpose of assessment. Even as the appellant contests the valuation of the goods, they have not been able to provide any cogent defense against the value determined by the adjudicating authority in respect of the impugned goods. Though, a copy of revised Commercial Invoice was produced by the appellant showing value much less than the value ascertained during investigation and in view of systematic commission of under valuation, I find that the said Commercial Invoice has to be discarded. Thus, in the peculiar facts and circumstances of the present case, I do not think that determination of value of the offended goods in the impugned order require any interference at my hands and I hold that the determination of value under Rule 9 is legal and proper. 8.5 The appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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