2014 (9) TMI 24

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....ice is as follows:- "Therefore, M/s. Gira Enterprises, Ahmedabad are hereby called upon to show cause to the Commissioner of Customs, Ahmedabad as to why: (I) the provisionally assessed Bills of Entry (as per Annexure 'A') should not be finalised after taking in value of US $ 1860.00 PMT CIF. (ii) The differential duty of Rs. 31,53,833/-(as per Annexure 'A') should not be recovered under Section 18(2) read with Section 28(2) of the Customs Act, 1962. (iii)The goods which are liable for confiscation under Section 111(m) of the Customs Act, 1962 should not be confiscated and why fine in lieu of confiscation should not be imposed as goods has already been cleared provisionally against Bond for test and value verification. (iv) Penalty should not be imposed on M/s. Gira Enterprises, Ahmedabad under Section 114A/112(a) of the Customs Act, 1962. (v) Interest under Section 28AB of the Customs Act, 1962 should not be recovered." 4. It is also stated in the show cause notice that the goods imported by the appellants were subjected to a test in the Central Excise & Customs Laboratory, Baroda. According to the show cause notice, the chemical name of the go....

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....ural justice as the only material relied upon by the Revenue i.e. copy of the alleged printout was not supplied to the appellant. Therefore, the appellant had no means of knowing as to whether any imports of comparable nature were made at the relevant point of time. 10. On the other hand it is argued by the Revenue that the impugned order calls for no interference. 11. Section 12 of the Customs Act, 1962 mandates that duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975(51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India. Undisputedly, the goods imported by the appellants are goods which are assessable to Customs Duty under Entry 2942 of the First Schedule of the Customs Tariff Act, 1975. It is also not in dispute that the duty is an ad valorem duty. Section 14 of the Customs Act stipulates the method and manner of the valuation of the goods which are exigible to duties under the Customs Tariff Act and assessable to ad-valorem duty. 12. Section 14 reads as follows:- "Valuation of goods for purposes of assessment. - (1) For the purposes of [the Customs Tariff Act, ....

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....Rule 4 of these rules." 16. Rule 4(1) stipulates as follows:- "The transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of Rule 9." 17. Sub-rule (2) (2) The transaction value of imported goods under sub-rule(1) above shall be accepted: Provided that- (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which -- (i) are imposed or required by law or by the public authorities in India; Or (ii) limit the geographical area in which the goods may be resold; or (iii) do not substantially affect the value of the goods; (b) the sale or price is not subject to same condition or consideration for which a value cannot be determined in respect of the goods being valued. (c) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Rule 9 of these rules; and (d) the buyer and seller are not related, or where the buyer and seller are related, that transact....

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....uthorized as Rule 4 declares that the transaction value of the imported goods shall be the "price actually paid or payable". Necessarily the rule implies the need of determination of the price actually paid or payable. 20. It is not necessary that in every case of import the importer declares the price actually paid by him or payable by him. Therefore, if in a given case the Revenue notices identical goods have been imported by other importers in comparable transactions at a different rate (normally higher rate) then Revenue is enabled by Rules 5 to reject the valuation made by the importer and determine the "price actually paid or payable" by the importer. 21. In the case at hand, no doubt the revenue claims to have some information based on certain alleged imports made at the Bombay port at the relevant point of time that the import in question took place. According to the revenue, those imports at Bombay were declared and valued at a much higher rate than the value declared by the appellants herein. Therefore, the valuation of the goods imported by the appellant was found unacceptable. Hence, the procedure under Rule 5 was resorted to. 22. However, the respondent(revenu....