TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 710
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, Rs. 15 lakhs and Rs. 10 lakhs respectively were also imposed on the co-appellants. 2. M/s. Arya Offshore Services Pvt. Ltd. has also filed an application for stay of operation of the impugned order wherein a penalty of Rs. 10,00,000/- has been imposed. 3. Considering the fact that the appeals of the impugned parties are listed for final disposal therefore, the stay application as well as the appeal of M/s. Arya Offshore Services Pvt. Ltd. have been taken up along with other appeals filed against the same impugned order for final disposal. 4. The facts in brief are that the appellants have imported a vessel namely "Swiber Victorious" on Charter Hire Basis and cleared duty-free import on re-export basis under valid essentiality certificate dated 12-1-2011 issued by DGH for execution of contractual work of petroleum operations for ONGC by claiming exemption under Sl. 214 of table & list 12 of Customs, Exemption Notification No. 21/2002, dated 1-3-2002. At the time of import, the value shown by the appellants in the bill of entry is US$ 23,533,700 and the same was assessed. After importation, it was revealed by the Revenue that as per the insurance cover under whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rred to therein. For that the DGH certified, unequivocally, that the barge imported by the appellant was essentially required for use in the said petroleum operations and there is no allegation against the appellant that the said barge was not so essentially required. Therefore, the essentiality certificate issued by DGH cannot be disputed. It is further submitted that after completion of the assigned work of petroleum operations the barge was re-exported. The rejection of essentiality certificate issued by DGH by the adjudicating authority merely on the ground that the value shown in the essentiality certificate is not as per the insurance cover. There was no allegation that the value of the goods was one of the considerations which governed issuance of the Essentiality Certificate in the said Notification. Therefore, even if the value shown in the Essentiality Certificate issued by the DGH was less than its true value, the denial of exemption benefit is not, justified. As the licencing authority, that issued the essentiality certificate has not charged against the appellant that they have obtained the Essentiality Certificate by mis-representation. Thus, the learned Counsel submi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficate is having evidential value to determine the value as held by the Hon'ble Apex Court in the case of Vareli Weaves Pvt. Ltd. v. Union of India - 1996 (83) E.L.T. 255 (S.C.). It is further submitted that the value adopted by the adjudicating authority (without admitting) is of March 2009 whereas the import took place in December 2010. Therefore, the said value cannot be adopted to determine the assessable value. It is further submitted that the vessel was imported on re-export basis and was allowed to be re-exported. Therefore, there is no question of demanding the entire duty if the exemption was to be denied in view of the decision of the Hon'ble Bombay High Court in the case of Cipla Ltd. v. Union of India - 1995 (80) E.L.T. 17 (Bom.). It is further submitted that as per Section 138B of the Act and binding precedents, reliance on statements, without examining the witnesses and thereafter permitting cross-examination of the makers thereof was not permissible. To support his contention the learned Counsel relied on the decision in the case of J & K Cigarette Ltd. - 2009 (242) E.L.T. 189 (Del.) = 2011 (22) S.T.R. 225 (Del.), Slotco Steel Products Pvt. Ltd. - 2012 (281) E.L.T. 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Cal.) the Hon'ble Calcutta High Court has held that the Customs Officer has no jurisdiction to determine the correct value in terms of Section 2(41) and 14(1) of the Customs Act, 1962 and in the case of Bata Shoe Company (P). Ltd. & Anr. v. CCE & Ors. - 1985 (21) E.L.T. 9 (S.C.) the Hon'ble Apex Court has held that before determining the question of availability of exemption under Notification, the first essential step is to determine the value of the article in the manner prescribed in Section 4 of the Central Excise Act, 1944. To support his contention he placed reliance in the case of Jain Shudh Vanaspati Ltd. & Anr. v. UOI & Ors. - 1983 (14) E.L.T. 1688 (Del.) and CC Bombay v. New India Industries - 1985 (21) E.L.T. 159 (Tri.). He also relied on the decision in the case of Naveen Jain v. CC - 2001 (134) E.L.T. 32 (Del.). In that case the Hon'ble High Court following the Apex Court's judgment in Pine Chemical Suppliers - 1993 (67) E.L.T. 25 (S.C.) where in it was held that misdeclaration of value of the goods attracts the provisions of Section 111(m) of the Customs Act, 1962. With these submissions, the learned Spl. Counsel submits that the adjudicating authority has rightly rej....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Commissioner in the adjudication order is that the insurance cover showing the price of the barge for insurance parties is 42.5 M. In fact, as per the agreement it is clearly instructed to the appellant that insurance cover has to be obtained on the said value for recovery of risks for other reasons. Moreover, the insured value is not the market value as held by this Tribunal in the case of Orient Enterprises (supra) which has been upheld by the Hon'ble Apex Court. Therefore, reliance on the documents namely invoice issued in 2009 and the insurance cover for insurance of the impugned barge are not the evidences to determine the assessable value. We further find that in this case the adjudicating authority has not relied on any other evidence for enhancing the declared value. Therefore, the value declared by the appellant in their bill of entry is really a transaction value and the same cannot be rejected without any supporting evidence. We also find that the appellant produced a certificate issued by Chartered Engineers dated 31-12-2010 certifying the value of the barge is US$ 23.5 Million. The said evidence has not been discarded by the adjudicating authority. Further, the appe....