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TMI Blog2023 (10) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... order [order-in-original No: 131/2007/CAC/CC (I)/SP/Gr VA dated 28th September 2007] of Commissioner of Customs (Import), Mumbai is not. A narrative, albeit briefly, of the facts and circumstances till now is, therefore, unavoidable. 2. The appellant, M/s Shashi Dhawal Hydraulics Pvt Ltd, was proceeded against by notice dated 26th September 2006 for recovery of Rs. 20,31,302 that had allegedly been short-paid on import of 'David Brown hydraulic pumps' between December 2001 and April 2003 from M/s S&H Universal, UK upon enhancement of assessable value from GBP 90 to GBP 212 apiece by adopting the value in imports effected by M/s Shashi Charu Hydraulic Pvt Ltd, a sister concern of the appellant, from the manufacturer themselves. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the preliminary issue herein would be as to whether the elements of the Proviso to Section 28 had been existing in the first place, which would be decided independent of the findings/observations of the Tribunal in the second impugned order dated 17.07.2019. 13. In view of the above, the impugned orders are modified to the extent that Appeal No. C/1132/2007 stands restored; and the question as to whether the extended period in terms of the Proviso to Section 28(1) of the Act of 1962 is available in this matter or not is remitted for consideration of the Tribunal in accordance with law. The parties shall stand at notice to appear before the Tribunal on 17.03.2023.' to circumscribe the present proceedings accordingly. 5. We have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods and that the variation in the transacted prices was within the knowledge of the authorized persons of the appellant-importer. The framework for valuation of imported goods for such difference in price to have the consequence of resort to rule 5 to rule 8 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 was also then existing. Invoking of the 'extended period' for recovery of 'import duties' that had been 'short-paid' was contingent upon establishing that 'suppression/misrepresentation' - not of the value, necessarily, but of aspects that would have influenced invoking of the impugned Rules - had occurred even as the transacted price may not have been exceeded but which, however, owing to 'Provided that- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was heard and disposed off in 2018; then Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 had been in operation for over a decade. The present dispute, as legacy of the erstwhile framework for valuation, had been evaluated accordingly, and not by the rigidity of mandate for acceptance of the 'declared value', save in specified circumstances, that is the hallmark of the contemporary Rules. It, therefore, remains to determine in the remand proceedings, if any additional facts thereto have been placed by the appellant. We do not find any such leaving only the issue of concurrence of findings on 'confiscation' and 'limitation' - arising from independent provisions in Customs Act, 1962. 8. In the erstwhile framework wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, be found to have justified the invoking of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for re-determination of the assessable value by addition to the extent of concealed price of procurement, it would well have been within the scheme of law to confiscate the goods by resort to section 111 of Customs Act, 1962. The fresh determination would have been a consequence of non-compliance with section 14 of Customs Act, 1962 and rule 4 (2) of the said rules arising from deliberate misrepresentation of the 'transaction value' in filing bill of entry. 9. Section 111(m) of Customs Act, 1962 may be invoked only upon material particulars being misdeclared and this detriment is in addition to duty liability determined un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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