TaxTMI 
TaxTMI 
2016 (3) TMI 513
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....al re-determined CIF value of Rs. 1,26,55,804/- under Section 111(d) & (m) of Customs Act, 1962 and the same being not available for confiscation. I impose a redemption fine of Rs. 1,00,000/- in lieu of confiscation. iii) I order to confirm the demand of Rs. 30,24,923/- under Section 28(2) of the Customs Act, 1962 by invoking the proviso to the Section 28(1) of the Customs Act, 1962 and order M/s Rudra Enterprises to pay the differential Customs duty amounting to Rs. 30,24,923/-, under Section 28(2) of the Customs Act, 1962. iv) I order appropriation of Rs. 12,187/- deposited by M/s Rudra Enterprises at the time of the provisional release of the seized goods against the amount as confirmed above under Section 28(2) of the Customs Act, 1962. v) I order for recovery of interest from M/s Rudra Enterprises on the said differential Customs duty amounting to Rs. 30,24,923/- under Section 28(AB)(1) of the Customs Act, 1962 from the first day of the succeeding month in which the duty ought to have been paid till the payment of such duty. vi) I also order to appropriate the bank guarantee No. 7339 dated 09.03.2007 for Rs. 36433/- executed by M/s Rudra Ent....
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....06. The goods were suspected to be undervalued. The statement of the proprietor of the appellant was recorded who in his 1st statement denied any valuation but in his 2nd statement recorded several months later admitted that the goods were undervalued but said that the undervalution was only about 25%. The simultaneous investigations of similar nature had also been initiated by DRI into the import of artificial flowers by other Delhi based importers, namely M/s KDS Exports, M/s Gokul Overseas, M/s K. K. Enterprises and M/s Krish Enterprises. The investigations revealed that these four importing firms were found to be run jointly by three persons namely, Himanshu Gupta, Sudhanshu Gupta and Deepak Aggarwal. Investigations conducted in this regard had conclusively proved that the said four importers wee also grossly undervaluing their imports of artificial flowers from China i.e. similar goods being imported from same country of origin. All the said three persons admitted in their statements of having undervalued their imports upto 70% of the actual value. The original invoices of Chinese suppliers of artificial flowers, retrieved during the examination of the CPU resumed from the pre....
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.... suppliers were different. (e) for the goods which are not available, no redemption fine can be imposed. It cited several judgements in support of the aforesaid contentions. 7. The Ld. Department representatives reiterated the arguments contained and impugned order. 8. We have considered the contentions of both sides. 9. As regards the contention of the appellant that DRI was not the proper authority to issue the show cause notice, it has been held by CESTAT in the case of Bhagwati Components Manufacturing Co. vs. Commissioner of Customs vide order No. MO/52995/2015 dated 04.09.2015 in Appeal No. C/422 of 2010 that the show cause notices issued by DRI are valid. 10. We find that the proprietor of the appellant in his statement conceded that the goods were undervalued (although it only conceded to the undervaluation to the extent of 25%). Therefore under the provisions of 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules 2007 the transaction value can be rejected as has been rightly done in the present case. Once the transaction value is not found to be acceptable, the value is to value can be determined in terms of Rules 4 or 5 ....
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....purpose of valuing the impugned goods, the lowest value of that range has been adopted which implies that the adjudicating authority had assumed the impugned goods to be of the lowest quality of the goods imported by others. Regarding the contention that the invoices used for comparison were the period 2005 and 2006 while the imports of the appellant took place over the period of 2003 to 2006, it is pertinent to mention that the price of the goods in June 2005 as per the evidence recovered was US$6.11/kilogram, it came down to US$5.18/kilogram in July 2006 and then to US dollars 4.08/kilogram in August 2006. It shows that the price of the impugned goods has been showing an inexorable declining trend and therefore adopting the price of US dollar 4.08/kilogram which was the lowest and the latest available in a declining trend in no way could/ would cause prejudice to the appellant. As regards the contention that the comparison can be made only when the goods imported by others with whom the comparison was made were at the same commercial level, we find that the goods imported by others were at a much higher commercial level as has been mentioned by the appellant itself in its appeal ....