TaxTMI 
TaxTMI 
2012 (12) TMI 49
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....g, Ahmedabad were resorting to misdeclaration and gross undervaluation of import of electronic goods, mainly car stereos, with an intent to evade payment of customs duty, the Directorate of Revenue Intelligence, Ahmedabad unit conducted an investigation into the matter. The investigation revealed that M/s. Chinmay Corporation imported 16 consignments of Electronic items for car stereos, i.e., CD/DVD/MP3 players, speakers and accessories through New Custom House, Mumbai port, Jawaharlal Nehru Custom House (JNPT) during April 2007 to October 2007. The investigation also revealed that M/s. Parth Marketing imported 37 consignments of the aforesaid items through Mumbai port, JNPT Port and Kolkata port during February 2007 to April 2008. The entire activities of M/s. Parth Marketing and M/s. Chinmay Corporation were controlled and managed by Shri Sushil Agarwal through his staff at Ahmedabad and Bhiwandi and Shri Sushil Agarwal was the director of M/s. Aashna Electronics P. Ltd. Though M/s. Chinmay Corporation was a proprietary firm with Pragnesh Shah as the proprietor and M/s. Parth Marketing was a proprietary firm with Jayant Bachcheta as the proprietor, the investments in these firms ....
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.... 1962 and a redemption fine was imposed under Section 125 of the Customs Act in lieu of confiscation. Varying penalties were imposed on M/s. Parth Marketing and M/s. Chinmay Corporation under Section 114 A of the Customs Act and on Shri Sushil Agarwal under Section 112(a). Hence the appellants are before us. 3. On behalf of Shri Sushil Agarwal, it is contended by the Advocate that he is not the importer of the goods and he was acting merely as a sales agent. Therefore, the demand of duty on him jointly with M/s. Parth Marketing and M/s. Chinmay Corporation is not sustainable in law. The bills of entry for the import of the goods have been filed by the M/s. Parth Marketing and M/s. Chinmay Corporation only and the declarations have been signed by them. It is further contended that the demand of duty is based on the ground that goods were imported in SKD condition and this is not sustainable in law when the goods are imported in parts at different points in time. The demand of additional customs duty CVD has been made on the basis of the retail sale price (RSP) of similar goods and there is no provision in Section 3 of the Customs Tariff Act to determine the RSP on the basis of....
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....er hand strongly opposes the stay application and submits that M/s. Parth Marketing and M/s. Chinmay Corporation have been floated by Shri Sushil Agarwal and these companies imported car stereo and other electronic gadgets in split up condition - while M/s. Parth Marketing imported metal components fitted with electronic components, M/s. Chinmay Corporation imported front panels, and when these are put together, they make a complete car stereo. Since car stereo is subject to MRP based assessment under Section 4A of the Central Excise Act, while charging additional duty of customs, it is necessary to determine the assessable value on the basis of MRP fixed on the package of such goods. In the case under consideration, no MRP was declared or affixed, as the goods were imported in split up condition. In such a scenario, it was necessary for assessing officer to ascertain the MRP of such goods and for this purpose, market enquiry was conducted to get the MRP of similar goods and after allowing permissible abatements from the MRP, determined the assessable value for levy of additional duty of customs was determined. As regards the contention that the appellant has not imported car stere....
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....hed during the investigation, the goods under importation were disassembled and the brand names were removed so as to make it appear that they are unbranded goods and they are not complete goods but parts of car stereo. Thus the intention to evade duty by misdeclaration of goods is clearly discernible when one goes through the evidence on record. Consequently, the charge of misdeclaration and undervaluation prima facie appears to be sustainable in law. 5.2 The ld. advocate for the appellant has raised a preliminary objection that since Section 28 of the Customs Act was substituted by Finance Act, 2011, amendment made thereto vide Customs Amendment and Validation Act, 2011 is effective only from 08-4-2011. This is a question challenging the vires of the retrospective amendment made to Section 28 of the Customs Act, 1962 for the period prior to 8th April, 2011. This Tribunal being a creature of the Customs Act, 1962 cannot go into the vires of the provisions of the Customs Act, 1962. This point has to be agitated before the appropriate forum, namely, the Hon'ble High Court or the Supreme Court. Further, the amendment has been carried out in Section 28 of the Customs Act to over....
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....that be so, the argument that the amendment carried out in Section 28 is effective only from April, 2011 and not before, negates the very object and purpose of retrospective legislation. This Tribunal, in our humble view is not competent to go into this question and therefore, we do not entertain this ground at all and the appellant is at liberty to seek remedy before the appropriate forum. 5.3 The next issue for consideration is whether the customs officers have powers to determine RSP for the purpose of levy of additional duty of customs (CVD), when the same is not declared by the importer. Reliance has been placed on the judgement of this Tribunal in the case of ABB Ltd. (supra). The said decision of the Tribunal has been challenged in the Apex Court by the Revenue and the SLP has been admitted. That being so, as per the decision of the Tribunal in West Coast Paper Mills (cited supra), the ratio of the decision is in jeopardy and the correctness or otherwise of the decision of the Tribunal becomes wide open. In such appeals, the Court is entitled to go into the question of fact as well as law and the correctness of the judgment is in jeopardy. It would, therefore, be impro....
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....duty /tax payable in India by reason of importation or sale of goods. Therefore, the price at which the imported goods are sold in India can be adopted as a basis subject to suitable modifications for the purpose of determination of value under the Customs Valuation Rules. Adopting and adapting this Rule for the purpose of levy of CVD, the RSP at which similar imported goods are sold in India can be taken as a basis for determination of RSP when the same is not declared. From the RSP so determined, in order to arrive at the assessable value of the goods for levy of CVD, abatements have been notified by the government which takes into account of the elements for which deductions have been prescribed. In the instant case, the RSP has been determined by the customs on the basis of RSP of similar imported goods sold in India. This appears to be a reasonable way of determination of value as far as Section 3 of the Customs Tariff Act is concerned read with sub-section (8) of the said Section. 5.5 When a machinery provision is not explicitly provided for in the law, there is no bar in adopting a reasonable provision to make the law operational. The Hon'ble Apex Court in the case of ....