AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 486
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....y) i) Shri Hareshlal Bhatia Rs. 60,000/- (Rupees Sixty Thousand only)" 2.1 A show Cause notice dated 15.02.1999 was issued to the Appellants alleging that they had willfully misdeclared the value of goods imported by them under Bill of Entry No 4741 dated 10.02.1994. The notice proposed for (a) recovery of differential duty of Rs. 5,92,378/- under section 28(1) along with interest; (b) penalty under Sections 112(a) & (b) and/ or Section 114A of the Customs Act, 1962. 2.2 The show cause notice was adjudicated by the Commissioner vide his order in original No CCP/ADJ/ACB/20/2000 dated 20.09.2000. By the said order Commissioner confirmed the demand of duty along with interest. He also imposed penalties on the noticees. 2.3 This order was challenged before Tribunal and tribunal has vide its order No A/606 to 612/WZB-2005-C-II dated 02.06.2005 decided the case remanding the matter back to adjudicating authority. While remanding the matter tribunal observed: "2. The ld. Counsel for the appellants submitted that the Commissioner has utterly failed to record his findings on the issue raised by the appellants that different goods were supplied to DESU other than those imported b....
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....t of undervaluation by tabulating the declared value against the value at which the goods were supplied to DESU. Para 9(i) is reproduced below: "9(i) A brief chart showing the extent of variation on the basis of values in the overseas suppliers invoice and its value equivalent in Indian Currency and the sale value as per the purchase order of M/s Delhi Electric Supply Undertaking of a few items as example given below would amply clarify this point: B/E No & Invoice No S No Description Value declared in US$ Equivalent in Indian Rupees Sale value as per purchase order of DESU (Rs) 1 2 3 4 5 6 4741/10.12.94 & S 340045/4 dated 03.02.94 of Crexmico USA 1 SS CHF 6M6-15 3.65 115.15 5950 2 SS CHF 6M6-15 3.60 113.80 5750 4.3 In para 8, 8.1 and 8.2 and 8,3 Commissioner observes as follows: "Now I proceed to take up the above issues one by one. As regards issue No (a) the investigating agency, on the basis of scrutiny of records and the investigations into imports made by M/s Degmak Engineering Corporation has relied upon the evidences such as Purchase order, Bill of Entry and Sales Invoice. Examination of these evidences and all other facts and rec....
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....uation rules, Rule 5 to 8 in seriatim. We are referring to following two decisions of the Hon'ble Apex Court on the subject. Garden Silk Mills [1999 (113) ELT 358 (SC)] "5. Section 12 of the Customs Act, 1962 (hereinafter referred to as "the Act") provides for the levy of duty of customs on the goods imported into or exported from India at such rates as may be specified under the Customs Tariff Act, 1975. Prior to its amendment in 1988, Section 14 of the Act read as follows : "14. Valuation of goods for purposes of assessment. - (1) For the purposes of Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be : (a) the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale : Provided that such price shall be calculated wit....
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....international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale. The price of the imported goods, in other words, has to be determined in respect of import of those goods for delivery at the time and place of importation. It appears to us that the word "delivery" must necessarily mean the point of time when the goods can be physically delivered to the importer. In other words, "delivery" and "discharge" are not synonymous. As we shall presently see, merely by the shipper discharging the goods at the port of import does not ipso facto give the importer a right to take the delivery thereof." Eicher Tractors Ltd [2000 (122) ELT 321 (SC)] "10.The respondent's submission is that the phrase "the transaction value" read in conjunction with the word "payable" in Rule 4(1) allows determination of the ordinary international value of the goods to be ascertained on the basis of data other than the price actually paid for the goods. This, according to the respondent, would be in keeping with the overriding effect of Section 14(1). We cannot agree. 11.It is true that the Rules are fr....
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....ially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules. 15.The Assistant Collector in this case determined the value of the imported goods under Rule 8. The question is whether he should have determined the transaction value under Rule 4 at the price actually paid by the appellant for the 1989 bearings. Naturally, if Rule 4 applies to the facts of this case, the Assistant Collector's reasoning under Rule 8 must, by virtue of language of Rule 3(ii), be set aside." 4.5 In view of the law clearly laid down by the Apex Court, we are not in position to agree with the findings of Commissioner on the issue of under valuation. Without rejecting the transaction value in the course of international trade in just and reasonable manner he could not have applied the rule 5 to 8. Further in case he was able to reject the transaction value then also he had to determine the transaction value by application of rules 5 and 6 first before coming to rule 7. Higher value charged by the appellants at the time....