TaxTMI 
TaxTMI 
TaxTMI 
2014 (1) TMI 1346
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Multi Media Speakers for Computers of varying models more particularly by lifting the Restraint Orders dated 07.05.2013 from the premises of the petitioner entity. 3. For the sake of brevity, facts are being taken from W.P.No.25862 of 2013, as common question of law and facts are involved in all these writ petitions. 4. The case of the petitioner in a nut-shell is as follows:- (a) The petitioner-entity is a trader in electronics and computer / IT goods and procures goods both locally and from abroad on wholesale basis. The petitioner for the purpose of conducting the said business is favoured with an Import-Export Code No.0405010532 issued by the office of the Zonal Joint Director General of Foreign Trade, Chennai and is duly registered with the Commercial Taxes Department of the State Government. The petitioner entity is also assessed to VAT with TIN No.33400582017, that registered with Central Sales Tax in C.S.T.No.789549 / 01.08.2003 and that also assessed to Income Tax with PAN No.AADCS9919C by the said department; (b) The petitioner, which is in the business for more than 9 years, in the course of its business, had imported consignments of Multi Media Speakers for Compute....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessed and the goods seized under mahazar pertaining to 4 Bills of Entry was not released, the petitioner had issued a letter through its counsel dated 10.05.2013, seeking assessment and release of the live consignment and for raising the restrain order in respect of the sealed godown premises, so as to deal with the stock of imported goods. It was pointed out that as the entire import documents have been seized by the respondents, as also drawal of representative samples of the goods completed and were already available with the respondent for causing necessary verification, further cause for the detention of the goods were not warranted. It was further stressed that the restrained goods cannot be kept on hold indefinitely, which would entail huge losses to the petitioner and the goods being highly sensitive in nature are prone to speedy deterioration and any further delay would make the goods obsolete within a short period in the market, due to enormous growth and every day change in the electronic sector; (f) The petitioner was summoned for enquiry pertaining to past imports for the last two years, participated in the enquiry on 18.06.2013 and furnished all the details and doc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aw as far as the valuation or the classification of the impugned goods is the same for the entire country and when the values adopted by the Nhava Sheva Customs during the preceding months are identical to the values adopted by the Chennai Customs, it becomes crystal clear that the communication dated 26.08.2013 attributable to the 3rd respondent is exfacie illegal and unsustainable on facts and law. 6. The respondents in W.P.No.25862 of 2013 have filed a counter affidavit, stating that based on intelligence received from the Directorate of Revenue Intelligence that multifunctional audio systems were being cleared by undervaluing the goods by misdeclaring them as Computer Peripherals, and misclassifying them under CTH heading 8518 through suppression of facts about the features available in the system and without resorting to Retail Sale Price (RSP) based assessment for payment of Countervailing Duty (CVD), the Intelligence Officers working under Central Board of Excise and Customs conducted mass raid on the major importers of these multifunctional audio systems on 7th May, 2013. Pursuant to which, the petitioner's office premises was also searched by the Officers of the Special I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itable Bond of Rs.55 Lakhs for the value of the goods 2.Cash deposit of Rs.12 lakhs towards duty and 3.Submission of Bank Guarantee of Rs.6 lakhs towards Adjudication levies. Thus, the petitioner's averment that detention of the goods were not warranted, is contrary to legal provisions and the seized goods are liable to confiscation under Section 111 of the Customs Act, 1962. 6c. It is the stand in the counter that the averment of the petitioner that on the basis of the contract entered into by the petitioner with its foreign suppliers, the consignment of imported goods was received in the month of May, 2013 is untrue, as at no point of time, the petitioner has submitted any contract before the Assessment or Investigating Officer. During investigation, it was found that the goods imported by the petitioner were actually manufactured by Chinese manufacturers and the models akin to the petitioner's and in some cases supplied by the same manufacturer from China were imported through Chennai Port for the following prices: 2.1 systems US$ 8.4 19.44 (FOB) 4.1 systems US$ 17.4 20.45 (FOB) 5.1 systems US$ 23.7 42.69 (FOB) In comparison, the petitioner declared the following values:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....els of 5.1 channel multifunctional systems from China that are manufactured by M/s.Enkor Electronics, Shenzhen, China and the said models from the same series of the same manufacturer have been imported through Chennai Port for much higher prices by concealing the Retail Sale Price with a view to evade the customs duty. M/s.Top Notch Infotronix, Chennai imported a model from H38 series of M/s.Enkor Electronics for a price of US$ 23.70 to 24.00, whereas the petitioner imported the same by declaring the purchase prices between US$ 8.00 and 8.10. Similarly, M/s.Top Notch Infotronix, Chennai imported two models from H58 series of M/s.Enkor Electronics for a price of US$ 37.30, whereas the petitioner imported the same by declaring the purchase prices between US$ 8.15 and 8.40 as also M/s.Top Notch Infotronix, Chennai imported a model from H68 series of M/s.Enkor Electronics for a price of US$ 38.03, whereas the petitioner imported models from higher H78 series by declaring the purchase price at US$ 9.05. 7. I have heard the learned Senior Counsel appearing for the parties and perused the material documents available on record. 8. On an analysis of the entire facts, it would reveal tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Retail Sale Price (RSP) ranging from Rs.450/- to Rs.1500/-, which is much less when compared to actual sale price in the market. The actual value of the goods seized is Rs.55 Lakhs with differential duty of about Rs.12 Lakhs. Thus, by mis-classification and mis-declaration of goods, the petitioner attempted to evade customs duty. Further investigation in the subject matter is in progress and hence, quashing of impugned communication dated 26.08.2013 as also provisional release of the goods, sought for by the petitioner could not be entertained. 10. While examining the claim of the petitioner for quashment of the communication dated 26.08.2013 and also the provisional release of goods, the circumstances under which the import was done, have to be looked into and thereafter, the value so declared by the petitioner is a matter to be taken into account. The petitioner declared the value of the goods as USD 11,182.19 CIF Chennai totally, which according to the respondents is low. Further investigation is yet to be completed and adjudication proceedings are also to be made thereafter. When such is the situation, what is the condition for provisional release to be made, has to be exami....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ported in 2013 (292) E.L.T.481 (Mad.). Therefore, the contention of the learned senior counsel is that the case of petitioners in the present case also stands on the same footing and their claim for provisional release of goods shall be considered along with a reasonable condition. 12. Refuting the above submissions, the learned counsel for the respondents contended that in the case of Commissioner of Customs V. Navshakti Industries Private limited, (2011 (269) ELT A146 (SC)), relied upon by the petitioners, the condition imposed for provisional release of the goods is only by a bank guarantee and in order to safeguard the interest of the Department, the petitioner has to pay 30% of the differential duty and shall furnish bank guarantee for 20% of the differential duty and for remaining 50%, the petitioner-Company should furnish a bond. The learned counsel further submitted that in case, the Department succeeds in the adjudication proceedings, it is not possible for the Department to recover any 'amount' if the goods are released. 13. It is seen that in Notification No.81/2011-Customs (N.T.), dated 25.11.2011 issued by the Government of India, Ministry of Finance, Department of ....