2025 (11) TMI 210 - AT - Customs

Appeal allowed: Activity treated as manufacture - liability under Section 4A, not isolated CVD under Section 3(2)

M/s Reach Infocom Tech Pvt. Ltd., Ms Kinjal Desai Versus Commr. of Customs (Airport & Admin), Kolkata

CESTAT allowed the appeal, setting aside the demand for additional customs duty (CVD) and the confiscation and redemption fine. Tribunal held that where ... Short payment of CVD - MRP [RSP] found during the search operations was higher than the RSP declared at the time of imports - reliance placed on various statements recorded under Section 108 of the Customs Act to frame the entire case against the Appellant - allegation of misdeclaration is primarily based on the printouts of emails and what s app chats - absence of machinery provision under Customs Law, CVD cannot be demanded in isolation when the imports have been finally assessed - CVD can be demanded in isolation when the imports have been finally assessed or not - time limitation. HELD THAT:- Admittedly, the imported goods in question are subjected to valuation under Section 4 A of the CEA 1944, which requires the Excise Duty to be paid based on the RSP declared less the abatement granted vide the specific notification. The goods are also placed under Third Schedule of the Central Excise Act 1944, because of which packing, repacking, labelling and relabelling would amount to manufacture in terms of Section 2(f) of the CEA 1944. As to whether the CVD under Section 3 (2) of Customs Tariff Act can be demanded, when the CVD is payable in terms of Section 4 A arose in the case of Mitashi Edutainment Pvt Ltd Vs CC (Imports) [2018 (12) TMI 390 - CESTAT MUMBAI]. The Bench [Comprising of the Two Members and One Member given the task of taking up the Difference of Opinion] held that 'As declaration / alteration of MRP is also declared as a manufacturing process for the subject goods, excise duty would again be payable. Hence, the entire gamut of the provisions have to be seen in its totality and no isolated view can be taken. It is in this context that it has been held in the case of Starlite Components Ltd. case, supra that in such cases wherever subsequent manufacturing activities (deemed manufacturing activities) are carried out, there is even no need to pay CVD on the basis of MRP.' There is no direct mechanism available under Section 3 (2) of CTA to demand the CVD when the same is not based on ad valorem basis. When the CVD is levied based on the RSP less abatement, recourse to Rules of Valuation framed under the authority of Section 14 of Customs Act 1962 is precluded and the sanctity of the declared Retail Sale Price is protected from being re-determined - Once the goods fall under Third Schedule of CEA 1944 liable for Excise Duty payment under Section 4A, when the labelling / re-labelling is done towards the RSP, the Excise Duty is required to be demanded and not the CVD, i.e, the Additional Duty of Customs, even in the case of import of such goods - the demand of Customs Duty in the form of differential duty of CVD is without jurisdiction and hence legally not sustainable. There is nothing to indicate as to whether the quantity, country of export etc are nearer to the imports made by the present appellant. Further, the Tribunals / High Courts have also been consistently holding even the price adopted as per the NIDB website cannot be directly applied by Revenue, unless it is shown that the country of origin, quantity imported, date of import etc are nearly matching. In the present case, no such data has been made available by the Revenue, while they have arrived at the differential duty. Further, the goods in question are Mobile phones and Laptops. It is a common knowledge that the rates keep varying from time to time. Once the model becomes outdated by the introduction of the next model, the value generally falls. We are not made aware as to whether this factor was taken in to consideration while quantifying the differential duty. No enquiries have been from the distributors, dealers of the appellant’s product. The e-commerce sites cannot be relied upon to arrive at the RSP - the quantification of the differential duty arrived at by Revenue is erroneous. The changing / relabelling of the goods with revised RSP would amount to manufacture in terms of Section 2 (f). In that case, while the Excise Duty would be recoverable, the CVD paid at the time of import would be eligible for Cenvat Credit, as has been held in the case of L’Oreal case [2014 (8) TMI 132 - CESTAT MUMBAI], affirmed by the Bombay High Court. Therefore, even the Excise Duty could have been demanded only for the difference between the CVD paid and the alleged higher RSP based Excise Duty, which anyway is not the issue in the present case, wherein the Additional Duty of Customs has been demanded. In the present case, the goods were cleared in the normal course, after filing the self-assessed Bill of Entry after getting the out of charge issued by the Customs officials. No Bond has been executed at the time of clearance, nor is this a case of provisional release of any seized goods - the Confiscation order and the Redemption Fine imposed in the impugned order set aside. Time limitation - HELD THAT:- The entire demand is made under the wrong interpretation by demanding the Additional Duty of Customs Duty [CVD], whereas, the Duty if any, should have been demanded as Excise Duty as can be observed from the cited case laws. Further there is no factual evidence coming out as to actually it was the appellant only who had changed the labels and had changed the RSP. Since there is a gap of 3 to 5 years from the date of clearance of the imported goods and period of investigation and issue of SCN on the allegation of changing of RSP labels, no clarity comes as to when this activity of changing of labels with revised RSP was carried out or by whom, since the goods would have moved throughout India to various distributors. If the recorded statements are relied on to fasten the responsibility of changing of the RSP labels, it is observed that the persons recording the statements have not been subjected to Section 138 B procedure. Therefore, they have lost the evidentiary value. No corroborative evidence has been brought in by the Revenue. Hence, the Revenue has not been able to prove that this is a case of suppression with an intent to evade Duty. on the part of the appellant. Therefore, the demand for the extended is liable to be set aside on account of time-bar also. The impugned order set aside in toto both on merits as well as on account of time-bar - appeal allowd. ISSUES PRESENTED AND CONSIDERED 1. Whether Additional Duty of Customs (CVD) leviable under Section 3(2) of the Customs Tariff Act can be re-determined by Customs authorities after final clearance when CVD was originally paid on declared Retail Sale Price (RSP)/MRP. 2. Whether post-import activities such as packing, repacking, labelling or affixing fresh MRP stickers constitute 'manufacture' under Section 2(f)(iii) of the Central Excise Act and, if so, whether resultant duty liability lies under excise law (Section 4A) rather than by way of fresh CVD demand under Customs law. 3. Whether statements recorded during investigation under Section 108 of the Customs Act are admissible and can be relied upon by the adjudicating authority without compliance with the procedure in Section 138B (examination as witness, opinion on admissibility, and opportunity for cross-examination). 4. Whether computer printouts, emails and chat transcripts recovered from hard disks are admissible evidence without compliance with Section 138C of the Customs Act (certificates and conditions) and proof of custody/ownership of storage devices. 5. Whether a demand for differential CVD based on contemporaneous website prices or seized-stock MRPs can be reliably quantified for past import consignments without matching country of origin, quantity, date of import and corroborative market/distributor evidence. 6. Whether confiscation and imposition of redemption fine under Section 125 are sustainable where the imported goods have been finally cleared under self-assessed bills of entry without bond and goods are not physically available for confiscation. 7. Whether revenue can recover differential duties by invoking extended period of limitation in a subsequent show cause notice when an earlier show cause notice on related facts had already been issued and when original self-assessments were not challenged under the statutory appeal/assessment modification provisions. 8. Whether penalties on a director survive when the substantive demand against the company is held unsustainable. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Power to re-determine CVD (Section 3(2) CTA vis-à-vis valuation rules) Legal framework: Section 3(2) CTA prescribes value for CVD as RSP declared on the imported article less any abatement under Section 4A of the Central Excise Act; Customs Valuation Rules under Section 14 of the Customs Act govern BCD but proviso to Section 3(2) limits redetermination of RSP for CVD purposes. Precedent treatment: Prior Tribunal and other judicial pronouncements have held there is no machinery in Section 3(2) to redetermine MRP/RSP for CVD purposes and that recourse to valuation rules is precluded when CVD is levied on declared RSP. Interpretation and reasoning: The Court examined the statutory language and history, noting the proviso protects declared RSP from re-determination by valuation rules. The legislative scheme intended parity with domestic excise but did not provide an express mechanism under Customs law to re-fix RSP for calculating CVD where CVD is based on declared MRP. Ratio vs. Obiter: Ratio - there is no direct statutory mechanism under Section 3(2) CTA to redetermine RSP/MRP for CVD once goods have been cleared and CVD paid on the declared RSP; re-determination of CVD in isolation is without jurisdiction. Obiter - contextual observations on policy of parity with excise and historical evolution of rules. Conclusion: Demand for differential CVD predicated on re-determination of RSP/MRP after clearance is legally unsustainable and beyond Customs authorities' jurisdiction when CVD was originally paid on declared RSP. Issue 2 - Post-import relabelling as 'manufacture' and locus of liability (Excise v Customs) Legal framework: Section 2(f)(iii) Central Excise Act deems certain post-import processes (packing, repacking, labelling, relabelling) as 'manufacture'; Section 4A prescribes excise valuation on RSP for Third Schedule goods and abatement rules. Precedent treatment: Prior decisions have treated relabelling/affixing MRP on Third Schedule goods as 'manufacture', attracting excise duty; such cases also recognize CVD paid at import may be available as cenvat credit against excise liability. Interpretation and reasoning: If relabelling amounts to manufacture under excise law, the proper remedy is recovery of excise duty under Section 4A (allowing cenvat credit of CVD), not a fresh CVD demand. The statutory architecture contemplates excise machinery for ascertaining RSP in certain circumstances; Customs cannot assume powers of excise authorities to raise a post-clearance duty by re-characterising excise liability as CVD. Ratio vs. Obiter: Ratio - where post-import activities amount to 'manufacture' under Section 2(f)(iii), duty liability is under excise law and CVD already paid is creditable; demanding additional CVD is incorrect. Obiter - discussion of revenue neutrality and factual distinctions where activities occur under bond. Conclusion: The correct charge, if any, is under excise provisions; Customs demand for additional CVD on account of subsequent relabelling is erroneous. Issue 3 - Admissibility of statements under Section 108/138B Legal framework: Section 108 enables recording of statements during inquiry; Section 138B prescribes that such statements are relevant for proving truth only after the declarant is examined as witness before adjudicating authority and the authority forms an opinion on admissibility, with opportunity for cross-examination. Precedent treatment: Courts and Tribunals have repeatedly held the procedure in the counterpart excise provision is mandatory and failure to examine declarants before the adjudicating authority and to allow cross-examination renders such statements inadmissible. Interpretation and reasoning: The procedural safeguards are mandatory to guard against coerced or unreliable statements recorded during investigation. The Tribunal found the Revenue relied heavily on such statements without following Section 138B procedure; no examination before adjudicating authority or cross-examination was afforded. Ratio vs. Obiter: Ratio - statements recorded under Section 108 lose evidentiary value if Section 138B procedure is not complied with; reliance on such statements is fatal to the demand. Obiter - articulation of the rationale for mandatory procedure. Conclusion: The investigatory statements relied upon by Revenue are inadmissible and the demand based on them is unsustainable. Issue 4 - Admissibility of electronic records (Section 138C) Legal framework: Section 138C deems computer printouts admissible as documents only if statutory conditions and certificate requirements are satisfied. Precedent treatment: Authority recognizes that computer printouts from storage devices require proof of authenticity, ownership and statutory certification; printouts from seized hard disks without compliance are inadmissible. Interpretation and reasoning: The hard disks seized were not proved to belong to the appellant nor were statutory certificates produced. Electronic material (emails/WhatsApp chats) without compliance with Section 138C cannot constitute reliable evidence for quantification of duty or to establish suppression. Ratio vs. Obiter: Ratio - failure to comply with Section 138C renders computer printouts and electronic evidence inadmissible. Obiter - practical remarks on need for corroboration and chain of custody. Conclusion: Electronic printouts relied upon are inadmissible; demands grounded on them fail evidentially. Issue 5 - Quantification using e-commerce/website MRPs and valuation methodology Legal framework: Valuation for CVD under Section 3(2) requires declared RSP on the imported article; where re-determination is attempted, valuation must consider country of origin, quantity, date of import and comparable data. Precedent treatment: Tribunals have required close matching of import-specific parameters before adopting external price data; e-commerce listings without corroboration are unreliable. Interpretation and reasoning: Revenue used 2019 website screenshots and seized stock MRPs to infer past RSPs for 2015-2017 imports without showing nexus of quantity, origin or contemporaneous market data. Market prices of mobiles/laptops vary rapidly; reliance on unrelated e-commerce listings is speculative and cannot support quantification. Ratio vs. Obiter: Ratio - external website prices and seized stock MRPs cannot be mechanically applied to past imports for differential duty without material linkage and corroboration. Obiter - caution on market dynamics and need for distributor/dealer enquiries. Conclusion: Quantification of differential duty by reference to such sources is erroneous and unsustainable. Issue 6 - Confiscation and redemption fine where goods not available Legal framework: Section 125 empowers confiscation with option for redemption fine where goods are available; redemption presupposes existence/availability of goods for seizure/redemption. Precedent treatment: Authorities have held that redemption fine cannot be imposed where goods are not physically available for confiscation because goods had been previously cleared and no bond existed. Interpretation and reasoning: Here goods were cleared after self-assessment without bond; no goods were available for confiscation. Accordingly, confiscation and redemption fine are legally not sustainable. Ratio vs. Obiter: Ratio - where goods are not available (cleared previously without bond), confiscation and redemption fine are not sustainable. Obiter - remarks on nature of redemption fine as compensation for wrongful import subject to availability. Conclusion: Confiscation order and redemption fine set aside. Issue 7 - Limitation/extended period where earlier SCN issued and finality of self-assessment Legal framework: Statutory limitation for recovery and extended period provisions apply where suppression is proved; original self-assessments attain finality unless modified under statutory appeal or other provisions. Precedent treatment: Courts have held Revenue cannot indirectly reopen self-assessments without invoking proper modification/appeal provisions; issuance of an earlier SCN on same facts normally precludes later invocation of extended period absent new material. Interpretation and reasoning: Although a subsequent investigation produced additional material, the Tribunal found the core demand rested on an incorrect legal premise (CVD re-determination) and unreliable evidence; further, Department did not challenge original assessments as required. On facts the Tribunal held extended period invocation not sustainable in absence of proof of suppression and where evidentiary defects existed (inadmissible statements/electronic evidence). Ratio vs. Obiter: Ratio - extended period invocation cannot rescue a demand founded on wrong legal basis and inadmissible evidence; self-assessments not challenged by statutory procedure limit Revenue's power to reopen. Obiter - analysis of effect of subsequent investigations. Conclusion: Extended period demand is set aside on both merits and time-bar grounds. Issue 8 - Penalty on director when substantive demand fails Legal framework: Penalties on individuals flow from sustainable substantive finding against the entity and proof of culpability. Precedent treatment: Where substantive demand or evidentiary basis collapses, consequential penalties typically do not survive. Interpretation and reasoning: Since the substantive demand against the company was held unsustainable on jurisdictional, evidentiary and limitation grounds, penalties imposed on the director could not be sustained. Ratio vs. Obiter: Ratio - penalties on officers fall when the substantive order against the company is set aside for lack of jurisdiction/evidence/time-bar. Obiter - reliance on detailed appeal grounds of appellants. Conclusion: Penalties on the director are vacated as consequential relief.