TaxTMI 
TaxTMI 
2018 (12) TMI 392
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....On the basis of SSIB Mundra intelligence that the importers are importing ordinary belts (PU Belts) and are undervaluing the goods with intent to evade customs duty, the aforesaid consignment was examined in light of DGOVs Circular No. Val/Tech/25/2013 dated 07.08.2013 issued for suspected undervaluation in import of PU Belts. It was found that goods imported under aforementioned bill of entry had declared value Rs. 5.25 per piece which was appeared low as the value declared by SSIB officers examined total of 1,37,100 pieces of PU belts and on reasonable belief that the goods were undervalued than the actual value detained and released provisionally. Thereafter, a show cause notice was issued asking the appellant as to why:- (i) the declared value of Rs. 22,19,739/- imported under the bills of entry as mentioned aforesaid under Rule 12 of the Valuation Rules, 2007, should not be rejected and should not be re-determined to Rs. 78,30,968/- under Rule 9 of the Valuation Rules, 2007; (ii) the goods imported should not be confiscated under Section 111(m) of Customs Act, 1962; (iii) the duty of Rs. 22,59,378/- on re-determined value of Rs. 78,30,968/- should not be demanded and recove....
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.... the declared value under Rule 12 and re-determined the value under Rule 9 of Customs Valuation Rules, even when the goods are regularly being imported and cleared by various customs stations. In this position, the residual method is not applicable. In support of his submission, he placed reliance on the following judgments:- (a) CC, New Delhi vs. Nath International - 2013 (289) ELT 305 (Tri. Del.) (b) Om Drishian International Limited vs. CCE, New Delhi - 2015 (315) ELT 441 (Tri. Del.) (c) Topsia Estates Pvt. Limited vs. CC (Import-Seaport), Chennai - 2015 (330) ELT 799 (Tri. Chennai) (d) Selection Enterprises vs. CC, Chennai - 2005 (183) ELT 273 (Tri. Bang.) (e) Andaman Timber Industries vs. CCE, Kolkata - 2015 (324) ELT 641 (SC) (f) CC (Import) Chennai vs. Sainul Abideen Neelam - 2014 (300) ELT 342 (Mad.) (g) CC, Calcutta vs. South India Television Pvt. Limited - 2007 (214) ELT 3 (SC) (h) Tolin Rubbers Pvt. Limited vs. CC, Cochin - 2004 (163) ELT 289 (SC) 3. Shri K.J. Kinariwala, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterated the findings of the impugned order. 4. We have carefully gone through the submissions made by both sides and perus....
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....ase, the allegation is of under-invoicing. The charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word "value" is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14(1). The value to be declared in the Bill of Entry is the value referred to above and not merely the invoice price. On a plain reading of Section 14(1) and Section 14(1A), it envisages that the value of any goods chargeable to ad valorem duty has to be deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). It is made clear that Section 14(1) and Section 14(1A) are not mutually exclusive. Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. The value is deemed to be the price at which such goods ....
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....by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. 7. Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s. Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted....
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....rd 'the' as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out in Rule 4(2). In the said judgment, it has been further held that, the word 'payable' in Rule 4(1) also refers to the "transaction value" and payability in respect of the transaction envisaged a situation where payment of price stood deferred. Therefore, this decision of the Supreme Court directs the Revenue to decide the validity of the particular value instead of rejecting the transaction value. We wish, however, to clarify that it is still open to the Department based on evidence, to show that the declared price is not the price at which like goods are sold or offered for sale ordinarily, which words occur in Section 14(1). Lastly, it is important to note that in the above decision of this Court in Eicher Tractors (supra) this Court has held that the Department has to proceed sequentially under Rules 5, 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with Rules 5, 6 a....
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....nts' acceptance of the enhanced value when his statement was recorded, enhancing the assessable value without adhering to the principles of natural justice cannot be sustained. The vague assertion that market enquiries have been made without indicating the details of the same and fixing the duty liability on the importer on the basis of the same cannot be accepted. In view of the above observations we allow the appeal with consequential relief." The above decision of the Tribunal was upheld by the Hon'ble Apex Court by dismissing the Civil Appeal filed by Commissioner of Customs, Chennai in the case of Topsia Estates Pvt. Limited vs. CC (Import-Seaport), Chennai the Tribunal held that merely on the basis of NIDB data, the declared value cannot be enhanced. As regards the DGOV Circular, on the similar and standing order, issued by a Commissionerate, this Tribunal in the case of Om Drishian International Limited vs. CCE, New Delhi (supra) passed the following order:- "3. The dispute in the present appeal relates to the assessable value of the ball bearings. The lower authorities enhanced the value of the bearings based upon the Circular No. S/26-Misc.-2195/2005 VA, dated 24-9-....