TaxTMI 
TaxTMI 
2016 (2) TMI 616
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....7, 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 value of Rs. 17,79,822/00 is demanded and ordered to be recovered u....
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.... 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. Shakti International, Ludhiana under section 112 (a) of the Customs Act, 1962. 45. I impose a penalty of Rs. 1,00,000/00 (Rs.One lac only)....
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....d 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. Departmental Representative, on the other hand, referred to the impugned order to contend that the evidences available in this case show that the allegations were clearly sustainable and so the impugned o....
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....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 if the goods imported were 100% nylon yarn, the same would not have been eligible for duty concession and would also have been liable to confiscation if the same were diverted and not used by the ....
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.... 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 NIDB data with respect to similar goods imported during the contemporaneous period and therefore the enhancement of value was sustainable. 8. We have considered the contentions of both sides. The appellant is a regular importer of the imp....
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....tion 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 primary adjudicating authority relied on the DRI alert circular and the NI DB data of contemporaneous reports to enhance the assessable value. We find that in the case of Techno Marketing Vs. CC Kolkatta (supra) it was held that letter written by one Commissioner to another ind....
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....ist 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 assessee questioned the classification earlier agreed to buy it. in the case of Eicher Tractors Ltd. and South India Television (supra) the Supreme Court clearly held that valuation has to be determined in accordance with the customs valuation rules. This legal position is well s....