TaxTMI 
TaxTMI 
2010 (4) TMI 634
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....ligence, a show-cause notice was issued on 19-8-98 proposing to enhance the unit price of Air Conditioners covered by the B/E dated 2-4-97 and 21-4-97 to US $ 260 per piece FOB and US $ 360 per piece FOB respectively, as also to make further loading under Rule 9(2) of the Customs (Valuation) Rules, 1988. This notice also proposed to confiscate the goods under Section 111(d) and (m) of the Customs Act and to impose penalty on the assessee under Section 114A or Section 112 of the Act. The deposit of Rs. 2.5 laths already made by the assessee during the course of investigations was proposed to be appropriated towards the demand of duty based on the new assessable value. The proposals in the show cause notice were contested by the assessee. In adjudication of the dispute, the ld. Commissioner of Customs (import) determined the assessable value of the goods at Rs. 11,472.79 per piece and Rs. 15,885.59 per piece in respect of the goods covered by Bills of Entry dated 2-4-97 and 21-4-97, respectively. On this basis, differential duty of Rs. 4,34,071.38 was confirmed against the assessee under the proviso to Section 28(1) of the Customs Act. The aforesaid deposit of Rs. 2.5 lakhs was order....
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....acity, he paid Rs. 74,000/- at the rate of Rs. 37/- per US $ for the differential amount (US $ 2000) and, in the case of import of Air Conditioners of 1.5 Ton capacity from Singapore, he paid Rs. 1,67,800/- at the rate of Rs. 38/- per US $ for the differential amount (US $ 4416). In the second statement given by Shri Rahul R. Pate! on 21-4-98, he con firmed the previous statement dated 7-8-98 and furnished additional information. In this statement, he also disclosed the particulars of the import of Air Conditioners made through Air Cargo Complex, Mumbai. The relevant invoices were also referred to in this statement. Shri Patel stated that the negotiated price of the Air Conditioners was higher than the price mentioned in the said invoices and in the Bs/E. He furnished "the actual negotiated amount paid on the Air Conditioners" as follows :- S1.No. Description Actual price paid after the negotiation in US $ (FOB value) 1. 0.75 T.O. General Brand US $ 260/- FOB 2. 1.50 T. National Brand US $ 360/- FOB 3. 2.00 0. General Brand US $ 420/- FOB Shri Patel admitted that "the actual prices paid as negotiated" were on FOB basis and that the prices shown in the i....
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....t in UOI v. lain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)J, which was followed by the Hon'ble Madras High Court in Venus Enterprises v. Commissioner of Customs, Chennai [ (199) E.L.T. 405 (Mad)J. It has also been pointed out that the SLP filed by M/s. Venus Enterprises was dismissed by the apex court. In her rejoinder, the ld. Counsel for the assessee has submitted that the case law cited on behalf of the Revenue may not be applicable in a situation where there was repeated enhancement of assessable value in respect of a given imported consignment. In this connection, it has been pointed out that, in one of the present cases, the unit price of Air Conditioners was increased by the assessing authority and it was further increased by the adjudicating authority under Sec. 28 of the Customs Act. Such repeated enhancements, according to the id. Counsel, are not permissible in law, as held by this Tribunal in the cases of Hitaishi Fine Kraft Indus., Pvt. Ltd. v. Commr. of Customs, West Bengal(supra) and Shimnit Machine Tools & Equipment Ltd. v. Commr. of Customs, Sheva (supra). The ld. Jt. CDR and the ld. SDR have argued that, as the Hon'ble Supreme Court or the Hon'ble High Cou....
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.... that the order of assessment on which no Appeal was preferred, can be reopened by issue of a fresh show- cause notice under Section 28A of the Customs Act, in the light of the apex court's decision reported in 2004 (172) E.L.T. 145 (S.C.) in the case of Priya Blue Industries Ltd. v. Commissioner of Customs ?" The Hon'ble High Court answered the above question in favour of the Revenue in paragraph 6 of its judgment, which is reproduced below:- "6. With regard to question No. 1, the law is well settled that a show- cause notice under the provisions of Section 28 of the Act for payment of customs duties not levied or short-levied or erroneously refunded can be is sued only subsequent to the clearance of the goods under Section 47 of the Act vide Union of India v. fain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)]. Therefore, as rightly held by the Tribunal, if the contention of the appellant's counsel that when the goods were already cleared, no demand notice can be issued under Section 28 of the Act is accepted, we will be rendering the words "whether any duty has been short-levied" as found in Section 28(1) of the Act as unworkable and redundant, inasmuch as the jurisdiction....
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....r price per piece in the invoices than what the importer was liable to pay. Even the amounts of extra payments made by the assessee to the supplier were also stated by the former. In the second statement, it was admitted that the price negotiated with the supplier was FOB price. The ld. Counsel has made an endeavour to show that the first statement of the assessee was not voluntary and, therefore, anything contained therein is not reliable. We find that, in the second statement, Shri Patel never complained that his earlier statement was made under coercive circumstances. As a matter of fact, the second statement is seen to be clarificatory of certain aspects covered by the first statement. Additional particulars were also supplemented in the second statement. By and large, the two statements appeared to be consistent with each other and there is no significant conflict between the two. We that a clear admission of undervaluation of the goods is reflected in the statements given by the importer under Sec. 108 of the Customs Act. It is also on record that certain payment was made voluntarily by them during the course of investigations. Therefore, we are not impressed with the plea ma....