TaxTMI 
TaxTMI 
2019 (5) TMI 486
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.... i) Shri Ashok T Bhatia Rs. 60,000/- (Rupees Sixty Thousand only) 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 app....
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....em to DESU at much higher price than the price declared by them on Bill of Entry. Para 9(i) of the Show Cause Notice shows the extent 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/....
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....he said decisions is that transaction value in the course of international trade is the assessable value. In case the transaction value cannot be determined or found not to be the true transaction value, the valuation has to be done by application of valuation 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 importati....
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....n 14 of the Act. The said Section requires determination of the value of the imported goods. The appellants are right in contending that this is a deeming provision. The value of such goods is to be deemed to be the price at which such goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation 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. 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 conju....
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....nd on the basis of data available in India." If the phrase 'the transaction value' used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14.It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially 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 und....
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.... and Spares to be used in liquid fuel circuit/gas turbine (imported equipment) are highly specialized parts for highly specialized imported equipment and the Check Values & Spares had been imported as per the specification and drawings given by Delhi Electric Supply Undertaking. This is evident from a letter F.No. ST/FE/44/93-94 dated 28.12.1998 from the Additional C.P.O (Legal), Delhi Vidyut Board addressed to the Marine and Preventive Department wherein it has been stated that goods supplied by M/s. Degmak Engineering Corporation under Purchase Order ST/FE/44/92-93/502 dated 04/07.10.1993 were used in the equipment imported from France. The said goods were procured from M/s. Degmak Engineering Corporation as per specification/descriptions made available by the original manufacturer of the plant. Further, the Additional C.P.O. (Legal) stated that M/s. Degmak Engineering Corporation supplied material as per their specification and that no other technical specification of material catalogue, pamphlets, operation manual labels infrastructure of original manufacturer (overseas supplier) were submitted by M/s. Degmak Engineering Corporation. Fr....