TMI Blog2023 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to recheck but which could have easily be re-checked before clearance - similar case up before this Tribunal in the case of COMMISSIONER OF CUSTOMS DELHI VERSUS M/S HANUMAN PRASAD SONS [ 2020 (12) TMI 1092 - CESTAT NEW DELHI] where it was held that the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry.Recycling also holds that if the declared transaction value is rejected, then it has to be determined in accordance with the procedure prescribed in rules 4 to 9. The only difference between this appeal and the one in Hanuman Prasad is that in this case, the re-valuation had to be done because more goods were imported than what were declared which fact has been accepted by the appellant and which it had not disputed during assessment whereas in the case of Hanuman Prasad the re-assessment became necessary because the declared value was much lower than the contemporaneous values and the enhanced value itself was accepted by the importer. In Hanuman Prasad, after accepting the enhanced value and clearing the goods for home consumption, the importer assailed the re-assessment - The assessing officer, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of imported goods shall be the market value of the goods minus the duty chargeable thereon. The redemption fine imposed in each of the four Bills of Entry is way below this limit. In the factual matrix of this case, we find that amount of redemption fine imposed is fair and proper and calls for no interference. Are the amounts of penalty imposed under section 112 correct or excessive? - HELD THAT:- The penalties under section 112 are a small fraction of the market value of the goods confiscated which is fair and proper and calls for no interference. Appeal dismissed. - HON'BLE MR. JUSTICE DILIP GUPTA , PRESIDENT HON'BLE MR. P. V. SUBBA RAO , MEMBER ( TECHNICAL ) Ms. Anjali Gupta with Shri Rajatdeep Sharma, Advocates for the Appellant Shri Rajesh Singh, Authorized Representative of the Department ORDER P V SUBBA RAO : 1. M/s. Sunlight Overseas filed these four appeals to assail the Order in Appeal Impugned order dated 28.8.2019 passed by the Commissioner of Customs (Appeals) Delhi whereby he rejected the appellant s appeals and upheld two orders in original OIO dated 13.1.2017 and two Orders in original dated 8.2.2022 passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous imports of similar goods under Valuation Rule 5. He demanded the differential duty, confiscated the goods under section 111(l) and 111 (m) for mis-declaration, allowed their redemption on payment of fine under Section 125 and imposed penalties. The details of the duty fine and penalties in the OIOs were as follows. Bill of Entry Value of goods confiscated (Rs.) Duty assessed (Rs.) Redemption fine (Rs.) Penalty (Rs.) 7831426 dated 15.12.2016 17,16,230 5,05,275 4,00,000 2,00,000 8216204 dated 17.1.2017 15,66,312 7,02,141 5,00,000 3,00,000 7732792 dated 7.12.2016 10,76,361 5,06,768 4,00,000 2,00,000 8216202 dated 17.1.2017 15,17,826 7,55,197 5,00,000 3,00,000 6. On appeal, the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC Excise vs Akshay Aluminum Alloys Pvt Ltd. 2018 (364) ELT 170 (T) (g) there is no evidence of any undeclared flow-back to the exporter or any evidence of underhand payment and therefore, there is no reason to discard the transaction value; (h) the appellant was forced to apply for waiver of show cause notice as they had suffered huge warehousing shipping line demurrages and could not afford to continue the goods in custom warehouse and wanted to avoid these damages; (i) the assessment was done on the basis of the weight reflected in the weighment slip issued by the CONCOR which is against the statute; (j) the decision of this Tribunal in Final Order dated 20.10.2020 in the case of Hanuman Prasad Sons is not applicable to this case because in that case, the importer accepted the enhancement and in this case, there was no acceptance of undervaluation by the appellant; the values of the contemporaneous imports under NIDB were not shown by the proper officer; (k) the very act of filing of an appeal against an order imposing customs duty is a protest against the duty assessed as held in (i) Principal Commissioner of Customs vs Cisco Systems India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI received specific intelligence that the appellant had mis-declared the quantity of goods and put an alert in the system and accordingly, the assessing officer directed the examining officer to conduct 100% examination of the goods which exposed the mis-declaration. 12. When confronted with the examination report, the appellant had not disputed either the mis-declaration or that the value should accordingly be re-determined. It had also not contested the re-determination of value in any manner. It had, in fact, waived the SCN and the personal hearing thereby precluding the possibility of the proper officer indicating how he proposed to re-determine the duty before issuing the OIO. The appellant undertook to pay the differential duty and fine and penalty. 13. Having accepted the re-assessment of the Bills of Entry, the appellant cannot now contest it. The appellant s contention that it was forced to accept the re-assessment to avoid demurrages has no force because nothing in its letters indicated that it was accepting the re-assessment only to avoid demurrages. He places reliance on Hanuman Prasad 14. We have considered the submissions on both sides. As per section 17(1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolves 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. 15. As can be seen, as per Valuation Rule 12, if the proper officer, has reason doubt the truth or accuracy of the value declared, he can call for information and if no information is provided by the importer or after receiving the information, if he still has a reasonable doubt, then it shall be deemed that the value cannot be determined as per the transaction value. Thus, in the first stage, it is sufficient if the officer has some reason to doubt to call for information but at the second stage to reject the transaction value, he should have reasonable doubt. No restrictions have been placed on the proper officer in this Rule on raising doubts. However, explanation 1(iii) to the Rule lays down six conditions, which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneous furniture and therefore, assessment of the value as per the value of contemporaneous imports of similar goods is fair and proper. 18. Learned counsel for the appellant submitted that determination of the quantity of the goods based on the weight taken at the CONCOR was not proper. She also argued that since furniture is not sold by weight but by numbers, the quantity should have been determined as per the number of articles, which, even though the imported goods were in SKD condition, was possible. Neither of these arguments can be accepted. If the appellant had any doubt or reservation about the weight taken, it could have asked the weight to be re-checked on another weigh bridge but the appellant had not done so. If the appellant wanted to contest that the quantity of the goods was the same even if the weight was more, it could have said so and these factual aspects could have been verified. It could also have been ascertained as to why the weight was more-whether it was because more furniture was imported or stronger and heavier furniture was imported while invoices were issued for lighter furniture. Insofar as this case is concerned, the fact that excess quantity of 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs bonded warehouse for months or years. If the goods in these cases were in the Customs bonded warehouse, there cannot be any demurrages at all. 22. Learned counsel also submitted that the very act of filing of an appeal against an order imposing customs duty is a protest against the duty assessed. Reliance was placed on Cisco Systems India Pvt. Ltd., Mafatlal Industries, Mohan Textile Mills, Ganesh Trading Company, Bayshore Glass Trading Pvt. Ltd. vs CC Kolkata, and S H Gears Pvt. Ltd.We find that all these decisions were in the context of refund of duty paid but which was, on appeal, set aside, could be denied on the ground that the assessee had not paid it under protest. These do not carry the case of the appellant any further. 23. This appeal is against re-assessment in which the appellant waived, in writing, the SCN and personal hearing and in which it had not even disputed that the goods which were imported were much more than what was declared. The question is whether the appellant can, after the goods have been cleared after paying duty, fine and penalty, now dispute the assessment of duty on facts which are now impossible to recheck but which could have easil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms, New Delhi (ICD TKD) vs M/s UniexcelPolychemPvt. Ltd. The Tribunal observed that: 4. On the merit of enhancement of value, we are in agreement with the findings in the impugned order. No detailed reason has been given by the Original Authority for rejection of the transaction value. Apparently he was guided only by DRI alert which formed basis of enhancement of value. It has been repeatedly held by this Tribunal as well as Hon'ble High Courts that the transaction value cannot be rejected mechanically based on suspicion or general alert without supporting evidence to the effect that the invoice value does not reflect the transaction value required for assessment. In the present case, we find that no evidence of any nature has been brought out or discussed before such enhancement. Even contemporaneous value of similar or identical goods have not been examined and discussed 44. This decision also does not indicate that the importers had accepted the value of the goods proposed by the Revenue in writing or that the importers had waived their right to a speaking order. In fact, it was the DRI alert that formed the basis of enhancement of value. 45. The Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, for the reasons stated above, do not help the respondent. 48. Thus, for all the reasons above, the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. 24. The only difference between this appeal and the one in Hanuman Prasad is that in this case, the re-valuation had to be done because more goods were imported than what were declared which fact has been accepted by the appellant and which it had not disputed during assessment whereas in the case of Hanuman Prasad the re-assessment became necessary because the declared value was much lower than the contemporaneous values and the enhanced value itself was accepted by the importer. In Hanuman Prasad, after accepting the enhanced value and clearing the goods for home consumption, the importer assailed the re-assessment. In this case, after not disputing mis-declaration of the quantity of goods imported, the appellant did not even ask as to on what value the goods would be assessed or the basis for taking that value. By waiving the SCN and also the personal hearing, the appellant made it both unnecessary and impossible for the department to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually imported and not just what have been indicated in the invoices. Relevant legal provisions are reproduced below: Section 11. Power to prohibit importation or exportation of goods.- (1) If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description. ***** Section 12. Dutiable goods. - (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India. (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government. Section 111. Confiscation of improperly imported goods, etc. - The following goods brought from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pection Report, Bill of Lading, Invoice, Bill of Entry Description of Goods are shown as Aluminium Scrap . In that circumstance, it cannot be alleged against the respondent that he had deliberately misdeclared the goods. Moreover, from any stretch of means it is impossible to ascertain the goods contained in the container are not such goods as declared in the documents. 29. We respectfully disagree with the learned Member s finding that if the declaration was as per the invoice, packing list, etc. and the goods actually imported were different, no mis- declaration can be alleged. If it is held that it is sufficient if the declaration in the Bills of Entry match the invoices or Bills of Lading even if it does not match the goods which are actually imported, it will open the floodgates for smuggling and mis- declaration. For instance, one can get an invoice for say, paracetamol and file a Bill of Entry accordingly and actually import heroin and claim that he has not mis-declared. One can get an invoice for iron and actually import gold. One can get an invoice for and declare, in the Bill of Entry, say 100 kg and actually import 1000 kg. The importer is responsible for what he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in respect of such goods. (3) Where the fine imposed under sub-section (1) is not paid within a period of one hundred and twenty days from the date of option given thereunder, such option shall become void, unless an appeal against such order is pending. Explanation .-For removal of doubts, it is hereby declared that in cases where an order under sub-section (1) has been passed before the date** on which the Finance Bill, 2018 receives the assent of the President and no appeal is pending against such order as on that date, the option under said sub-section may be exercised within a period of one hundred and twenty days from the date on which such assent is received. 32. Thus, in terms of the second proviso to Section 125, the maximum redemption fine in case of imported goods shall be the market value of the goods minus the duty chargeable thereon. The redemption fine imposed in each of the four Bills of Entry is way below this limit. In the factual matrix of this case, we find that amount of redemption fine imposed is fair and proper and calls for no interference. Quantum of penalty 33. Learned counsel for the appellant submitted that even if the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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