TMI Blog2023 (2) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant also categorically stated that it was ready to pay the duty amount as per the assessment value of the goods, which the appellant believed was usually on the higher side than the minimum value. Section 124 of the Customs Act does provide for issuance of a show cause notice and personal hearing but in view of the specific request made by the appellant, show cause notice was not issued and personal hearing was also not granted. The assessing officer, after rejecting the value declared by the appellant in the Bills of Entry, reassessed the value of goods. The appellant paid the enhanced value without raising any objection or protest at the time of clearing of the goods. Thereafter, an appeal was filed to assail the order passed by the Additional Commissioner. It is correct that the Assistant Commissioner could not have determined the assessable value in an arbitrary manner even if the importer had submitted in writing that it would pay the duty amount as per the assessment, but it is seen from the order passed by the Assistant Commissioner that contemporaneous datas were examined. During the course of hearing of the appeal, learned counsel for the appellant also plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Declared Qty. (MTS) Declared Unit Price (USD/MTS) (1) (2) (3) (4) (5) (6) 1. 8375933 04.08.2020 Defective Tinplate Coil 75.31 435 2. 8390733 06.08.2020 Defective Tinplate Misprinted Sheet 141.13 330.95 (Euro 287) 3. 8390321 06.08.2020 Defective Tinplate Misprint Sheets 117.91 330.95 (Euro 287) 3. The goods were self-assessed by the appellant under section 17(1) of the Customs Act. 4. The Special Investigation Intelligence Branch [SIIB] investigated the aforesaid three Bills of Entry and noticed that the declared price of the goods was below the Minimum Import Price and, therefore, violated Policy Condition No. 1 of the ITC(HS) Import Policy which prescribed that the specified defect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s our first mistake we were not aware of this policy restriction And, also, we are ready to pay the duty amount as per the assessment value of the goods (which is as usual on the higher side from the min. value) We are already suffering a lot from heavy demurrage detention charges. So, please decide on priority and release the goods as soon as possible. Also, Kindly consider all three BE Mentioned as an individual document and please proceed them separately so that goods delivery order for all three can be taken separately. Thanking you in anticipation and hoping for a soonest and favourable decisions. For Aggarwal Traders Sd. Authorised Signatory 7. The Additional Commissioner, after noting that the importer had made a request for waiver of show cause notice and personal hearing observed that since the declared value in the three Bills of Entry was below the minimum import price, the imported goods became restricted goods. The Additional Commissioner also noticed that similar goods were being assessed at USD 540 as per the Contemporaneous Import Data. The Additional Commissioner also noted that since the importer had undervalued the imported g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as mentioned in column (5) of Table-D supra, imported vide Bills of Entry, as specified in column (2) of said table, in terms of Section 111(m) and 111(o) of the Customs Act, 1962. However, I give an option to the importer to redeem these goods on payment of Redemption Fine of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) under Section 125(1) of the Customs Act, 1962. (iii) I also impose penalty of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) on the M/s. Aggarwal Traders under Section 112(a)(i) of Customs Act, 1962. (emphasis supplied) 8. Feeling aggrieved, an appeal was filed by the importer before the Commissioner (Appeals) who, as noticed above, by order dated 01.09.2021 dismissed the appeal. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below: 5.0 Discussion and findings:- 5.2 Firstly, I note that the Appellant had themselves requested for waiver of SCN and P.H. vide their letter dated 09.09.2020. They had admitted that they were not aware of the Policy Condition and it was their first mistake. Thus, their plea of not giving opportunity is self-contradictory as they had themselves waived it. The Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to confiscation under section 111(m) and 111(o) of the Customs Act nor could penalty be imposed under section 112 (a)(i) of the Customs Act. 10. Shri Rakesh Kumar, learned authorized representative appearing for the Department, however, supported the impugned order and placed reliance upon the Division Bench decision of this Tribunal in Commissioner of Customs vs. Hanuman Prasad Sons Customs Appeal No. 51601 of 2019 decided on 20.10.2020 (Tri.-Del.). 11. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the Department have been considered. 12. Section 14 of the Customs Act deals with Valuation of Goods and is reproduced below: Section 14. Valuation of goods. - (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include - (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed; (b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture or production; (e) the non declaration of parameters such as brand, grade, specifications that have relevance to value; (f) the fraudulent or manipulated documents. 14. Rule 12 provides that when the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may ask the importer to furnish further information. Rule 12(2) stipulates that it is only if an importer makes a request that the proper officer shall, before taking a final decision, intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared and provide a reasonable opportunity of being heard. To remove all doubts, Explanation 1(iii)(a) provides that the proper officer can have doubts regarding the truth or accuracy of the declared value if the goods of a comparable nature were assessed at a significantly higher value at about the same time. 18. Explanation (1)(i) to rule 12 of the Valuation Rules, however, provides that the rule only provides a mechanism and procedure for rejection of declared value and does not provide a method for determination of value and if the declared value is rejected, the value has to be determined by proceeding sequentially in accordance with rules 4 to 9. 19. Regarding the determination of the value of the imported goods the Assistant Commissioner noted as follows: Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case the value has been fixed at only Euro 470.5 per MTS. It cannot, therefore, be urged that the assessable value was determined by the Assistant Commissioner in an arbitrary manner on a higher side. 22. The issues involved in this appeal were dealt at length by a Division Bench of the Tribunal in Hanuman Prasad and it was held that it was not necessary to issue any notice or grant a personal hearing when the importer had waived this right in writing and as the value reassessed was accepted by the importer, the differential duty was correctly recovered. 23. In this connection, it would also be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs. Commissioner of Customs, Jodhpur 2015 (326) ELT 185 (Tri.-Del), wherein the Tribunal, after making reference to the decisions of the Tribunal in Vikas Spinners vs. Commissioner of Customs, Lucknow 2001 (128) ELT 143 (Tri.-Del) and Guardian Plasticote Ltd. vs. CC (Port), Kolkotta 2008 (223) ELT 605 (Tri.-Kol), held that as the appellant therein had expressly given consent to the value proposed by the Revenue and stated that it did not want any show cause notice or personal hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants. Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999. After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-51990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and paid the duty amount on the loaded value of the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to confiscation : - ***** (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54; ***** (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer; 29. The Additional Commissioner has noted that as the importer had tried to import the restricted goods in violation of the provisions of the ITC(HS) Import Policy and the value had not been correctly declared, the goods were liable to confiscation. There is, therefore, no error in the order. 30. Penalty has also been imposed upon the appellant under section 112(a) of the Customs Act. This section is reproduced below: Section 112. Penalty for improper importation of go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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