TMI Blog2000 (12) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... such trade discounts being offered by the manufacturer. Revenue finds that the Commissioner (Appeals)' observation that the price list did not indicate any trade discount does not appear to be factually correct and in the facts and circumstances of the present case, the Tribunal's order relied upon by Commissioner (Appeals) do not appear to be correct and the discount of 30% on list price should not be available and in these facts, it cannot be argued that the importer had not under-invoiced or under-valued the goods. This was a clear case of under-invoicing to evade Customs duty and therefore, the goods were correctly confiscated under Section 111 (d) and (m) of the Customs Act 1962. Hence the Collector (Appeals) was not correct in reduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case the appellants had placed an order with the foreign supplier for supply of the subject goods and the supplier having supplied the goods had also issued an invoice. The department had somehow found out the price indicated in the invoice to be less than the price indicated in the price list of the manufacturer and therefore made out a case of under-invoicing/under-valuation and the department had not adduced any material evidence indicating a relationship between the supplier and the importer or any evidence indicating remittance of any amount over and above the invoice price by the importer to the supplier. The Collector (Appeals) has held that it was not uncommon to find supplier's price to be less than manufacturer's price on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this view of the Supreme Court decision, when we find that the Ld. Collector (Appeals) has come to a finding that there is no evidence of a special relationship between the supplier and the importer and or indication of remission of any amount over and above the invoice price by the importer to the supplier, then we find no reasons to differ from the 'invoice value' to be the 'transaction value' in the facts of this case applying the Supreme Court decision herein. (b) Once we find that the 'invoice values' are acceptable as the 'transaction values' for the purposes of determination of duty, we cannot find any case or under invoicing or under-valuation as determined by the lower authorities. Therefore, we cannot find any case for confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no justification for imposing penalty on the respondents since the department failed to establish a clear-cut case of under valuation based on material evidence. The Commissioner has relied on the Supreme Court decision in the case of M/s. Akbar Badruddin Jiwani (supra) wherein their Lordships observed as follows : - "The discretion to impose penalty must be exercised judiciously. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or guilty of contumacious or dishonest conduct or acted in conscious disregard of its application, but not in cases where there is technical or venial breach of the provisions of Act or where the breach flows from a bona fide plea that the offender is not liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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