TMI Blog2024 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... rted and this fact has been recorded in paragraph 20 of the order. The very fact that the appellant had agreed for enhancement of the declared value in the statement submitted to the assessing authority, itself implies that the appellant had not accepted the value declared by it in the Bill of Entry. The value declared in the Bill of Entry, therefore, automatically stood rejected. Further, once the appellant had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the 2007 Valuation Rules. This is for the reason that it is only when the value of the imported goods cannot be determined under rule 3(1) for the reason that the declared value has been rejected under sub rule (2), that the value of the imported goods is required to be determined by proceeding sequentially through rules 4 to 9. As noticed above, the appellant had accepted the enhanced value. There was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the 2007 Valuation Rules sequentially. The appellant had pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessable value of the goods was higher than that declared by the appellant on comparison of the value with that of similar goods from the e-commerce sites. On being shown the value of the goods from the sites, the appellant in writing not only waived the issue of show cause notice and personal hearing, but also submitted a statement dated 23.08.2019 accepting the said value. This fact has been noticed by the Joint Commissioner in the order and the relevant portion of the order is reproduced below: Waiver of show cause notice personal hearing 1, Sanjay Kumar Bhatia, Aged 45 years, S/o Shri Nand Kishore Bhatia, R/o 24/2B, Tilak Nagar, New Delhi-1100018, Prop. of M/s Spartan International office at 17/52, 1st Floor, Tilak Nagar, New Delhi- 110018, declared as follows:- 1. I/We request that the case may please be adjudicated without issuance of a written Show Cause Notice. 2. I/We have submitted my submission in my statement dated 23.08.2019. 3. I/We wish/do not wish to be heard in person by the Adjudicating Authority. Sh. Sanjay Kumar Bhatia of M/s Spartan International in his statement dated 23.08.2019 has confirmed that he do not want any personal hearing in the case and request fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. I find that on comparison of the contemporary data, the overall value of the goods is very low and hence the declared value does not appear to be the true transaction value of such goods under Rule 3 of the Customs Valuation Rules, 2007. The same is liable to be rejected under Rule 12 and re-determined under Rule 5 of the CVR, 2007. Therefore, the goods were under-valued, the goods are liable for confiscation under Section 111 (m) of the Customs Act, 1962 and penalty is imposable on the importer under Section 112 (ii) of the Customs Act, 1962. 22. Further I find that the importer also admitted that the assessable value of the imported goods are on the lower side as compared to the declared value of the goods. The imported goods were mis-declared as much as undervaluation of the goods by the importer made deliberately to evade customs duty, thus contravened the Provisions of Section 111 of the Customs Act, 1962 hence, the goods covered under the said bill of entry are, therefore liable for confiscation. Thus, the act of Shri Sanjay Kumar Bhatia has made him liable for penalty under section 112 of the Customs Act, 1962. He has knowingly and willingly submitted improper fact before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel pointed out that there is a detailed procedure provided under the 2007 Valuation Rules for rejecting the declared value and re-determining it, but it was not resorted to by the Adjudicating Authority. Learned counsel also stated that duty on enhanced value was paid under duress. 6. Shri M.K. Shukla, learned authorized representative appearing for the department has, however, placed reliance upon the decision of the Tribunal in Commissioner of Customs, ICD Patparganj, Delhi vs. M/s Hanuman Prasad and Sons 2021-TIOL-CESTAT-Del and submitted that the impugned order does not call for any interference. Learned authorized representative submitted that once the appellant had waived the issuance of show cause notice and personal hearing and had also accepted the value of the goods indicated by the Joint Commissioner, it is not open to the appellant to now raise any issue regarding the valuation. 7. The submissions advanced by the learned counsel appearing for the appellant and the learned authorized representative appearing for the department have been considered. 8. Section 14 of the Customs Act deals with Valuation of Goods‟ and is reproduced below: Section 14. Valuation of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9. (ii) The declared value shall be accepted where the proper officer is satisfied about 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under subsection (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the reassessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. 13. It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Subsection (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper officer shall pass a speaking order on the re-assessment, except in a case where the importer confirms his acceptance of the said re-assessment in writing. Thus, if the importer confirms his acceptance of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 17. Explanation (1)(i) to rule 12 of the 2007 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. 18. In Century Metal Recycling Pvt. Ltd. vs. Union of India 2019 (367) ELT-(SC) , the Supreme Court summarized the provisions of rule 12 of the 2007 Valuation Rules and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or personal hearing being granted and that the value indicated by the Joint Commissioner was acceptable to it, it was sought to be contended by the learned counsel for the appellant that the transaction value of the imported goods alone should have been treated to be the value of the goods, as provided for under rule 3(1) of the Valuation Rules, since none of the conditions stipulated in the proviso to sub-rule (2) of rule 3 were attracted and in any case, if the declared value could not be determined under sub-rule (1) of rule 3, it was required to be determined by proceeding sequentially through rules 4 to 9. 20. Rule 3 of the 2007 Valuation Rules is, therefore, reproduced below: Rule 3. Determination of the method of valuation.- (1) Subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of rule 10; (2) Value of imported goods under sub-rule (1) shall be accepted: Provided that (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which (i) are imposed or required by law or by the public authorities in India; or (ii) limit the geographical area in which the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs, Lucknow 2001 (128) E.L.T. 143 (Tri.-Del.) and Guardian Plasticote Ltd. vs CC (Port), Kolkotta 2008 (223 E.L.T. 605 (Tri.- Kol.) , held that as the appellant therein had expressly given consent to the value proposed by the department and stated that it did not want any show cause notice or personal hearing, it was not necessary for the department to establish the valuation any further as the consented value became the declared transaction value requiring no further investigation or justification. Paragraph 5 of the decision is reproduced below : 5. We have considered the contentions of both sides. We find that whatever may be the reasons, the appellant expressly gave its consent to the value proposed by Revenue and expressly stated that it did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the consented value in effect becomes the declared transaction value requiring no further investigation or justification. To allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of loaded value of the goods as determined in the presence of their Representative/Special Attorney and paid the duty thereon accordingly. (emphasis supplied) 25. In Guardian Plasticote., the Tribunal after placing reliance on the decision of the Tribunal in Vikas Spinners, also observed as follows: 4. The learned Advocate also cites the decision of the Tribunal in the case of M/s. Vikas Spinners v. C.C., Lucknow 2001 (128) E.L.T. 143 (Tri.-Del.) - in support of his arguments. We find that the said decision clearly holds that enhanced value once settled and duty having been paid accordingly without protest, importer is stopped from challenging the same subsequently. It also holds that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. It clearly transpires from the records that the appellant had accepted the value and had paid the excise duty. The Commissioner (Appeals) clearly noted this fact and observed that the appellant submitted the letter accepting the enhancement under protest after depositing the duty and the contention appeared to be an afterthought after payment of duty, redemption fine and penalty. Ofcourse, the letter could have been submitted on the same date the duty was paid. 31. The appellant had procured the goods from an overseas supplier based in Hongkong. The appellant, on being asked by the adjudicating officer, did not also produce the manufacturer invoice or the sale price. The invoice of the manufacture would have clearly indicated whether the appellant, for ulterior motives, had purchased the goods for a lesser price from the supplier based in Hongkong to evade payment of duty. The Adjudicating Officer had re-determined the value of the imported goods, not only because the appellant had accepted the value but also because of the contemporaneous data available on the e-commerce sites. When this price available on the sites was shown to the appellant, the appellant submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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