TaxTMI 
TaxTMI 
TaxTMI 
2009 (4) TMI 812
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....he tune of Rs. 1.75 crores and thus he has consciously evolved a modus operandi to evade payment of appropriate customs duty by producing two sets of invoices, one showing lesser value for customs and another with actual value, which is the final loading invoice and therefore it is necessary to detain him under the provisions of COFEPOSA with a view to prevent him from indulging in smuggling of goods in future, further ordering confiscation of apples so imported under Section 111(m) of the Customs Act, 1962. The said order of detention has been challenged on various grounds in this Habeas corpus Petition. 3. Mr. B. Kumar, the learned Senior Counsel appearing for the petitioner would submit that the documents mentioned in the index at Page Nos. 42 and 43, which were relied upon by the Detaining Authority while clamping the impugned order of detention, were not supplied to the detenu. He has further submitted that the detenu, by his representation dated 2-12-2008, has specifically requested to furnish the legible copies of documents at page Nos. 298, 300-303, 335-338, 347, 348, 358, 362, 403, 404, 411, 412, 414, 415 and 424, since they are illegible, but no such documents were furn....
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.... such documents or even the legible copies of the same, would not, in any way, have the effect of branding the impugned order of detention 'illegal'. While arriving at this conclusion, we garner support from the judgment of the Hon'ble Apex Court in Usha Agarwal v. Union of India and Others [(2007) 1 SCC (Cri) 342], wherein the Hon'ble Apex Court has held that 'copies of the documents supplied to the detenu, which are alleged to be illegible, were the documents sent by the detenu himself to the Department concerned and therefore, illegibility of copies of portion of the documents is not a ground on which detention can be said to be vitiated'. In this view of the matter, the judgment of the Hon'ble Apex Court in Adishwar Jain v. Union of India and another [(2007) 2 MLJ (Crl.) 529 (S.C.)] relied on by the learned Senior Counsel for the petitioner has no application to the facts of the case on hand. This submission made on the part of the learned Senior Counsel for the petitioner, is, accordingly, rejected. 7. The learned Senior Counsel for the petitioner has strenuously argued that the sole allegation of the respondents against the detenu is that he has committed the offence of unde....
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....hall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf : Provided further that the rules made in this behalf may provide for, - (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section: Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Section 46, or a shipping bill of export, as the ....
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.... are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule (3) below. (3) (a) Where the buyer and seller are related, the transaction value shall be accepted provided that the examination of the circumstances of the sale of the imported goods indicate that the relationship did not influence the price. (b) In a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to one of the following values ascertained at or about the same time. (i) the transaction value of identical goods, or of similar goods, in sales to unrelated buyers in India; (ii) the deductive value for identical goods or similar goods; (iii) the computed value for identical goods or similar goods : Provided that in applying the values used for comparison, due account shall be taken of demonstrated difference in commercial levels, quantity levels, adjustments in accordance with the provisions of rule 10 and cost incurred by the seller in sales in which he and the buyer are not related; (c) Substitute values shall not be established under the....
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....r Section 28 of the Customs Act, when any duty has not been levied or has been short-levied or erroneously refunded or when any interest payable has not been paid, part paid or erroneously refunded, the Proper Officer may serve notice on the person chargeable with the duty within the time limit prescribed therein. Section 128 of the Customs Act provides for appeal to Commissioner against any decision or order passed under the Customs Act by an officer of customs within sixty days from the date of the communication to him of such decision or order. 15. When such safeguards and procedures have been contemplated under the Customs Act and the Rules framed therein, we are unable to find anything from the bulky material submitted before us by the respondents, that they have followed the procedure contemplated under the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for assessing the value of the imported goods, so as to say that the detenu has undervalued the same and is thus liable to be punished. No reasons, much less appreciable ones, have been offered by the Department as to how they have arrived at the conclusion that the detenu had undervalued the goods i....
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....y evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. The value to be declared in the bill of entry is the value determined in accordance with the provisions of Section 14(1) and not merely the invoice price." "Sections 14(1) and 14(1-A) envisage that the value of any goods chargeable to ad valorem duty has to be the deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). Section 14(1) and Section 14(1-A) are not mutually exclusive. Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. Therefore, what has to be seen by the Department is the value or cost of the imported goods at the time of importation i.e. at the time when the goods reach the customs barrier. Therefore, the invoice price is not sacrosanct." "However, before rejecting the invoice price the Department has to give cogent reasons for such re....