2019 (10) TMI 430

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....ndent proposing to include the royalty paid by the authorized distributors/authorized OEMs to Microsoft on the System Builder packs to the price paid by the petitioner for the CDs/DVDs imported by them. The petitioner contested the proposal. The second respondent passed an order in original dated 28.04.2018 rejecting the transaction value and redetermining the total value of the consignments by including the royalty payable by the authorized distributors/authorized OEMs to Microsoft to the price of the imported goods. Accordingly, the differential duty of Rs. 17,71,29,717/- was demanded under Section 18 read with Section 28(8) of the Customs Act, 1962, along with applicable interest. In addition, the imported goods were held liable for confiscation and a redemption fine of Rs. 18 crores was imposed. Further, penalty of a sum of Rs. 17,71,29,717/- equal to the duty demand was also imposed on the petitioner under Section 114A of the Customs Act, 1962. Further, finalization of provisional assessment was ordered in terms of Section 18 of the Customs Act, 1962 on the basis of the value determined in the order and 29 bank guarantees totally valued at Rs. 3,44,16,000/- furnished were dire....

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....eferred by them. No coercive action so far was initiated against the petitioner. However, the direction was given only to re-validate the bank guarantees lying with the Department to the tune of Rs. 2,35,76,000/- in respect of remaining 26 bank guarantees. As per the adjudication order, the importer is liable to pay a sum of Rs. 53,42,59,434/- to the Department, which represents the differential duty + redemption fine + penalty. Therefore, the petitioner's claim for returning the bank guarantees, is legally incorrect. 4. Mr.K.Parthasarathy, learned counsel for the petitioner submitted that even though the petitioner suffered the order in original dated 28.04.2018, they preferred the appeal before the CESTAT and thus, they are bound to pay only 7.5% as pre-deposit towards the duty demand. Therefore, he contended that the respondents are not entitled to either enforce or direct the petitioner to keep the remaining bank guarantees alive over and above the sum of Rs. 1,06,84,728/-. He further submitted that already the Revenue has encashed the sum of Rs. 1,08,40,000/-, out of 3 bank guarantees referred to in the impugned proceedings and therefore, they are bound to retu....

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....ation (Determination of Price of Imported goods) Rules 1988. (ii) I re-determine the total value of the consignment covered by Bills of Entry listed in Annexure A to the SCN at Rs. 188,29,32,298/- (Rupees One Hundred and Eighty Eight Crore Twenty Nine Lakhs Thirty Two Thousand Two Hundred and Ninety Eight Only) (in terms of Rule 3 read with Rule 10(1)(c) & (d) of Customs Valuation Determination of Price of Imported Goods) Rule 2007 and Rule 8 read with Rule 9(1)(c) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 as applicable. (iii) I confiscate the goods imported by M/s.IP Softcorn vide the 32 provisionally assessed Bills of Entry (as listed in Annexure A to show cause notice) liable for confiscation under Section 111(d) and Section 111(m) of Customs Act, 1962 and I allow the confiscated goods to be redeemed under Section 125 of the Customs Act, 1962 on payment of redemption fine of Rs. 18,00,00,000/- (Rupees Eighteen Crore Only). (iv) I confirm the demand of differential duty of Rs. 17,71,29,717/- (Rupees Seventeen Crore Seventy One Lakhs Twenty Nine Thousand Seven Hundred and Seventeen Only) under Section 18 read with Sectio....

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....sposal of the appeal. 10. It is seen that as against the order of adjudication, the petitioner has already approached CESTAT and filed the appeal. There is no dispute to the fact that pending disposal of the appeal, the mandatory requirement for the petitioner is to make pre-deposit of 7.5% of the duty demand. It is also not in dispute that the said mandatory requirement of pre-deposit of 7.5% of the duty demand has also been met with by the petitioner by enforcement of three bank guarantees to the tune of Rs. 1,08,40,000/- and also by appropriation of Rs. 26 Lakhs, already paid by the petitioner on 16.02.2009. Therefore, it is evident that the statutory requirement of making pre-deposit pending disposal of the appeal has been met with by the petitioner. When such being the factual position, it is to be seen as to whether the respondent/Revenue is entitled to direct the petitioner to keep the remaining bank guarantees alive pending disposal of the appeal. I find that the claim made by the petitioner before this Court that the respondents are not entitled to seek for keeping remaining bank guarantees alive, cannot be sustained for the simple reason that the order of adjudication ....