TaxTMI 
TaxTMI 
2016 (2) TMI 616
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...., imported vide bill of entry No. 004032 dated 24.10.07, is rejected under Section 14 of the Customs Act, 1962 read with Rules 4 and 10A of the Customs Valuation (Determination of Prices of the Imported Goods) Rules, 1988 and enhanced to Rs. 17,79,822/- under Section 14 of the Act and Rule 4 of Customs Valuation (Determination of Prices of the Imported Goods) Rules, 1988, as amended from time to time. 42(C) The goods i.e. 8,000 kgs, valued at Rs. 17,79,822/00, imported vide bill of entry No.004032 dated 24.10.07 (i.e. 2,600 kgs. out of 8000 kgs of 100% Nylon Lurex Yarn, having actual re-determined assessable value of Rs. 5,78,442/00 and the goods, i.e. 5,400 kgs of 100% Nylon Lurex Yarn, having re-determined assessable value Rs. 12,01,380/-, seized in factory premises), imported through CFS Ludhiana, are confiscated under section 111(d), 111(o) & 111(m) of the Customs Act, 1962. However, in exercise of powers conferred upon me under section 125 of the Customs Act, 1952, I give the party an option to redeem the same on payment of redemption fine of Rs. 4,50,000/00 (Rs.Four lacs and fifty thousand only). 42(d) Duty amounting to Rs. 4,34,655/- leviable on reassessed ....
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....order the noticee to redeem the same on payment of redemption fine of Rs. 5,50,000/00 (Rs.Five lacs and fifty thousand only). 43(d) Duty amounting to Rs. 5,37,023/-, leviable on re-determined assessable value of Rs. 21,93,543/-, is demanded and ordered to be recovered under the proviso to Section 28 of Customs Act, 1962 along with interest payable thereon under section 28AB of the Customs Act, 1962. 43(e) I impose a penalty of Rs. 5,37,023/- (Rs.Five lacs, thirty seven thousand and twenty-three only) on Shri Parveen Kumar (Noticee No.1), Prop. of M/s. Parveen Kumar Hosiery, Ludhiana under Section 114A of the Customs Act, 1962. However, in terms of proviso to Section 114A of the Customs Act, 1962, I refrain from imposing penalty on Noticee No.1 under section 112(a) and 112(b) of the Act ibid. 43(f) I impose a penalty of Rs. 2,50,000/00 (Rs.Two lacs and fifty thousand only) on Shri Salil Kumar Magoo (noticee No.2) s/o Parveen Kumar, Prop. of M/s. Parveen Kumar Hosiery, Ludhiana under Section 112 (a) & (b) of the Customs Act, 1962. 44. I impose a penalty of Rs. 1,00,000/00 (Rs. One lac only) on Shri Dharam Pal Aggarwal (Noticee No.3), Prop. M/s. Sha....
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....he consignments clearly established that the goods imported were not 100% nylon yarn, but 100% nylon lurex yarn. 3. The appellants Shri Praveen Kumar and Shri SK Magoo (son of Mr. Praveen Kumar who admitted that he was looking after day-to-day functioning of M/s. Praveen Kumar Hosiery) have contended that - (i) chemical test report was not trustworthy; (ii) the goods can be got manufactured on job work basis; (iii) M/s. Praveen Hosiery had some machinery in its unit and got some work done from job workers; (iv) the statement of Shri SK Magoo was under duress; (v) the test report in respect of Bill of Entry No.4302 was still awaited. They questioned the statements given by various parties to the effect that they (i.e. various parties) did not manufacture goods for the appellant M/s. Praveen Kumar Hosiery or manufactured the same out of the domestically procured material. Shri Dharam Pal Aggarwal contended that he had only indented one container and thereafter Shri Praveen Kumar started to deal with the supplier directly and he was not aware of mis-declaration or under-valuation. 4. Ld. Departmenta....
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....id not submit any reply to the Show Cause Notice nor appeared for personal hearing. Thus, the primary adjudicating authority did not have any arguments from their side to rebut. We find that the enhancement of value has been done on the basis of the concrete evidence of under-valuation found in various e-mails and on the basis of the contents of the statements of Mr. Magoo and Mr. Dharam Pal Agarawl and the evidence of hawala transaction. Thus, the enhancement of value has been done in accordance with the Customs Valuation Rules and do not suffer from any legal infirmity. All these evidences put together are clearly more than sufficient to establish and sustain the allegation contained in Show Cause Notice on the principle of preponderance of probability if not on the principle of beyond reasonable doubt. It is not in dispute that the goods (100% nylon lurex yarn) were not allowed to be imported under advance authorisation issued to the appellant M/s. Praveen Kumar Hosiery by Joint DGFT and further the said advance authorisation required the goods allowed to be imported (namely 100% nylon yarn) to be used in the manufacture of export goods under actual user condition. Thus even i....
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....nt cited the judgements of the Supreme Court in the cases of Eicher Tractors Ltd. Vs. CC, Mumbai [2000 (122) ENT 321 (SC)], Tolin Rubbers Ltd. Vs. CC, Cochin 2004 (163) ENT 289 (SC) and Rabindra Chandra Paul CC (Prev.), Shillong [2007 - TIOL - 28 - SC - Customs]. 7. Per contra Ld. Department representative contended that (i) Rule 12 of the Customs Valuation Rules, 2007 provides for rejection of transaction value in case of reason to doubt the truth or accuracy of value declared and that there was sufficient ground in the present case to reject the transaction value under the shed rule. He relied upon the judgement in the cases of CC, Calcutta Vs. South India Television (P) Ltd. [2007 (214) ELT 3 (SC)], Gira Enterprises Vs. CC [2006 (196) ELT 92 (TriMumbai)], Techno Marketing Vs. CC, Kolkatta [2004 (164 ELT 113 (Tri - Del], Signal Bearing Co. Vs. CCE, Delhi-IV [2013 (293) ELT 284 (Tri-Del), Vikas Spinners CC, Lucknow [2001 (128) ELT 143 (Tri-Del)] and Grand Metal Industries Pvt. Ltd. Vs. CC (Prev), Amritsar [Final Order No.C/A/52569- 52570/2015-CU(DB) dated 17.08.2015]. (ii) The value is enhanced not only on the basis of DRI Alert Notes dated 09.05.2011 but also on the basis of N....
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....h imported goods cannot be determined under the provisions of sub-rule (1) of rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1)." 11. In the present case, there existed DRI alert Notes and also NIDB data to doubt the declared value. Indeed Explanation (iii) in the said Rule makes it clear that in the sector stances it was totally reasonable to doubt the transaction value. Indeed the Ld. advocate for the appellant during the arguments conceded that there existed reasonable doubt to reject the transaction value but he questioned the enhancement of value saying that there was no legal basis for doing so. Thus none of the judgements cited by the appellant come to its rescue in as much as rejection of the transaction value was clearly within the competence of the primary adjudicating authority. 12. Having thus justifiably doubting the transaction value and rejecting the same for that reason, the prim....
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....ted 27.06.2013 proceeded on the facts that the adjudicating authority has assessed the value without assigning any reason and that there was no basis to form a view to reject the transaction value and the authority did not pass a speaking order. None of these inadequacies exist in the present appeal. In the present appeal, sufficient ground exists for rejecting the transaction value as discussed earlier, and a speaking order has been passed for enhancing the value. The primary adjudication order is not a detailed one because the appellant did not want to reply the Show Cause Notice or appeared for hearing and therefore there was no arguments to rebut from the appellants side. The appellant cited the judgement of Supreme Court in the case of Eicher Tractors (supra) and Dunlop India Ltd. Vs. Union of India [1983 (13) ELT 1566 (SC)]. In the case of Dunlop India Ltd (supra) the issue was classification of goods and the Supreme Court essentially stated that "even when the goods are cleared under the classification consented by the assessee, assessee was not debarred from seeking refund". This judgement did not in any way mean that the refund shall be necessary granted only because asses....