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TMI Blog2025 (5) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... to Notification No. 49/2008-CE (NT) dated 27.02.2010 issued under section 4A of CEA this item attracts CVD on retail sale price based assessment. The department referred to the NIDB data which showed value range of Rs. 31 to Rs. 39 per piece. Market inquiry was conducted and it was found that the impugned item is used in Hero Honda and Pulsar motorcycle and its retail price is at Rs. 110 per piece. It was found that prior to the present B/E, the appellant had made the clearance of the said items by paying duty as per section 4 of CEA instead of section 4A in respect of B/E No. 2611062 dated 19.01.2011 and BE No. 2280702 dated 25.10.2010. 3. The statement of Shri Kulvinder Pal Singh, Proprietor of the appellant company was recorded under section 108 of the Act on 11.03.2011 and 18.03.2011 where he admitted the price of motorcycle inner tubes should be at least Rs. 32 per piece and he agreed to pay the duty on the enhanced assessable value of Rs. 32 per piece for CVD purpose and Rs. 110 per piece retail sale price for CVD purpose. He, therefore, submitted two cheques dated 11.03.2011 and 18.03.2011 for a sum of Rs. 11,04,527/-and Rs. 1,47,216/- respectively towards the differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the assessment of duty in terms of section 4A, it was submitted that the motorcycle inner tubes imported by the appellant were in wholesale packing of 50 pieces per carton and as such the provision of Standards of Weight & Measure Act, 1976 SWMA is not applicable, which means that CVD was chargeable under section 4 of CEA and not under Section 4A. In support of his submissions learned counsel has relied on Circular No. 625/CE dated 28.02.2002 which clarified that it is not necessary to declare RSP under SWMA in case of bulk packaging of the projects of the goods. The appellant has also challenged the impugned order on other counts of confiscation, imposition of redemption fine and penalty on the appellant. 9. Learned authorized representative appearing for the department has reiterated the findings of the authorities below. On the applicability of the provisions of section 4A, it was submitted that the motorcycle tubes are generally sold to any end consumers as individual pieces in cloth or paper packaging rather than in bulk cartons and it is not the case of the appellant that the goods were intended for industrial or institutional consumers. He argued that the goods are notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction value and re-determination of the assessable value has to be on the basis of cogent reasons and evidence on record. The onus to prove the allegation of undervaluation has been cast on the department. The allegation of undervaluation is not sustainable unless it is proved that additional consideration was involved or any of the exceptions in terms of Rule 4(2) are attracted. The legal provisions required the proper officer to intimate the grounds for enhancing the value and providing reasonable opportunity before taking the final decision on the issue of valuation. As the rejection of declared value on B/E is a serious issue, repeatedly, it has been interpreted by judicial forums that the primary requirements for re-determination of the value is that the transaction value should be rejected for cogent reasons as prescribed in CVR. 12. We may first deal with the findings of the authorities below regarding admission and acceptance by the appellant the charge of undervaluation. We cannot ignore the facts that the appellant had filed B/E dated 17.02.2011 for clearance of motorcycle tubes and pursuant to an intelligence the statement of Shri Kulvinder Pal Singh was recorded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty could hold that the paid price was not the sole consideration of the transaction value and since there is no such exercise done by the assessing authority to reject the price declared in the Bills of Entry, the Order-in-Orginal was held to be erroneous and the appeal filed by the Revenue was rejected. 14. Considering the fact of the present case, we would like to refer to the decision of the Ahmedabad Bench of the Tribunal in CMR Nikkei India (P) Ltd. Vs. Commr. of Customs 2022 SCC Online CESTAT 2765 , where the dispute was regarding the valuation of the goods imported by the appellant and the assessing authority reassessed the imported goods at values higher than what was declared in the Bills of Entry and the importer had accepted the enhanced value by submitting the consent letter. The Tribunal was pleased to observe as under: "10. Perusal of the records of the case indicates that the only reason cited for re- assessment of value is that the Appellant has accepted the enhanced value. No doubt acceptance of the enhanced value in writing waives the requirement of the issue of speaking order under Section 17(5) ibid. However, the requirement of Section 14 and the Customs Valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in his statement dated 20.01.2017. The said statement is perused vide which the said authorized representative has accepted the reassessed value and offered to pay differential duty along with the applicable fine and penalty...............................The voluntary payment hence cannot be called as admission of the appellant towards alleged mis-declaration for value from the above discussion. Since it is apparent that the Department has not followed the statutory procedure nor there was any mis-declaration of quantity as alleged, the mere acceptance of the re-assessed value and payment thereof will not be sufficient to confirm the allegations of under valuation. The burden was still on the Department to prove the allegations levelled. The said burden has not been discharged." 17. Lastly, we would like to refer to the decision of the Division Bench of Hon'ble High Court of Delhi in Niraj Silk Mills Vs. Commissioner of Customs (ICD) Patparganj CUSAA 26/2022 dated 27 November 2024, where the decision of the Apex Court in Commissioner of Customs Vs. South India Televisions (P) Ltd (2007) 6 SCC 373, was analyzed as under: "99. Burden of proving incorrect valuation lies on the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment without any corroborative evidence or contemporaneous import data. 19. The basic allegation of the department is that the declared value of the impugned goods were found different being on the lower side as the goods were required to be subjected to countervailing duty based on RSP under section 4A of CEA. Before proceeding further, the provisions of section 4A are quoted below: "SECTION 4A. Valuation of excisable goods with reference to retail sale price. - (1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates." Section 4A makes it clear that it applied only in those cases where there is an allegation to print RSP on the packages of the goods under the provisions of SWMA or the Rules made thereunder. In terms of section 4A, Central Government had issued Notification No. 49/2008-CE(NT) dated 27.02.2008 and Sl. No. 108 therein refers to as "parts, components and assemblies of automobiles". 20. Since in the present case the inner tubes were imported by the appellant in the packing of 50 pieces per cartons and the said tubes were not in individual package, reliance has been placed on Circular No. 625 dated 28.02.2002 which provides that in case of bulk packing there is no requirement of declaring RSP on the packages under the provisions of SWMA or the Rules made thereunder. The findings in the impugned order is that since the appellant has not shown that the inner tubes were sold only in the packing of 50 pieces per cartons the benefit of said circular is not available. In this cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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