TaxTMI 
TaxTMI 
2019 (11) TMI 1289
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.... PVC/PU Coated Fabrics falling under Customs Tariff heading 5903 commonly known as Artificial Leather cloth was being imported into India by undervaluing the same resulting in evasion of Customs duty. Therefore, DRI initiated investigation in respect of importers who had imported the said goods. DRI came to know that other two appellants Shri Jammal Akhtar and Shri Kamaal Akhtar were the persons associated with M/s JKB Exim Pvt. Ltd. and M/s Rightways Exim Pvt. Ltd. who were importing the said goods through Nhava Sheva port and also that Shri Surendra Kumar Pandey was clearing agent engaged in clearance of the said goods at Nhava Sheva port. Therefore, on 06.06.2013 statement of Shri Kamaal Akhtar was recorded. On 18.06.2013 statement of Shri Jamaal Akhtar was recorded. Statement of Shri Surendra Kumar Pandey was recorded on 22.04.2013 and 08.01.2014. Further, inquiries were conducted with the shipping lines. The scrutiny of imported documents of all the above stated three importers revealed that all the imports were done from China. M/s NYK Line (India) Ltd. vide their letter dated 03.09.2013 forwarded to DRI four invoices filed by the suppliers at the port of export. Similarly, M....
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.... issued with a common show cause notice dated 16.05.2014. Through the said show cause notice M/s Hero Traders were called upon to show cause to Commissioner of Central Excise and Customs, ICD Loni as to why declared value of around Rs. 39.07 crores should not be re-determined to the tune of around Rs. 57.58 crores in respect of goods imported by them. Similarly, M/s Rightways Exim Pvt. Ltd. were called upon to show cause to the Commissioner of Central Excise & Customs, ICD Loni why declared value of around Rs. 5.75 crores should not be re-determined at around Rs. 8.56 crores in respect of goods imported by them. Similarly, the proposal in respect of M/s JKB Exim was to enhance the value to the tune of around Rs. 12.49 crores approximately from declared value of Rs. 8.27 crores approximately. Accordingly, above stated 3 appellants were required to show cause to the same authority why differential customs duty of around Rs. 3.8 crores, Rs. 0.8 crores and Rs. 1.2 crores respectively should not be recovered from them under the provisions of Section 28 of Customs Act, 1962 and why penalties under Section 112 (a), 112(b), 112A & 114AA of Customs Act, should not be imposed on them. Furthe....
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....ales Pvt. Ltd. Vs Commissioner of Customs, Ahmedabad reported as 2008 (230) ELT 431 (Tri.-Ahmd). They therefore, argued that there was no basis for re-determination of value in respect of 13 Bills of Entry. They further, submitted before the Original Adjudicating Authority that similar goods means imported goods which although not alike in all respects, but all having like-characteristics and like-component materials which enable them to perform the same functions and should be commercially interchangeable with regard to quality, reputation and trademark. They further submitted that valuation in respect of PVC/PU Coated Fabrics vary according to nature of fabrics, quality of coating and surface graining besides thickness. Further, PVC Coated fabric and PU coated fabric are not similar goods. They have also submitted that DRI had taken up investigations in respect of goods imported through 643 Bills of Entry filed by the importers and in respect of 265 Bills of Entry the invoice values of the goods received were found to be higher than the values adopted for re-determination of value based on evidences found in respect of investigation of goods imported by Shri Vishal Madan. The Ori....
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.... that for determination of value under Rule 5 of said rules the similar goods should be imported at the same time and at the same commercial level and in substantially at the same quantity. He further submitted that invoice value of overseas suppliers received and submitted by the appellant were found to be in order during the assessment in different customs formation and have been found to be contemporaneous and that whenever contemporaneous value was found to be on higher side the value was enhanced and assessments were ordered during the relevant time and said enhancement were accepted by the appellant and no appeals were filed and therefore, in respect of such consignments there cannot be enhancement of value once again without revenue filing appeal before Commissioner (Appeals). He has also submitted that there were no information given in the show cause notice as to how the goods imported by Shri Vishal Madan and the goods imported by the present appellant were similar goods. Further, Original Adjudicating Authority has also not established through the impugned order that the goods imported by Shri Vishal Madan and goods imported by the present appellants were similar goods. ....
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....the foreign supplier. As such, by following the decisions, declaring the law on the point, we find no justification for enhancement of the prices, in respect of the above Bill of Entry." In the present case also there is no other evidence on record showing payment of higher value to the foreign suppliers. Further, the value has been enhanced on the basis of photocopies of documents obtained from the overseas shipping lines. By applying the ratio of Final Order of this Tribunal in the case of M/s Ram krishana sales Pvt. Ltd. we hold that the findings of Original Authority in respect of goods imported through 13 Bills of Entry are not sustainable. We, therefore, set aside the impugned order in respect of goods imported through the 13 Bills of Entry. 7. Further, in respect of goods imported through 365 Bills of Entries, we note that there is no discussion as to how the goods imported by Shri Vishal Madan are similar goods to the goods imported by present appellants. For the sake of clarity, we reproduce para 7.3 of said show cause notice dated 16.05.2014 as under:- "7.3. Analysis of similar goods:- Investigation in another case of import of PU/PVC coated fabric....
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....ons for the year 2012, the minimum of which is 1.40 USD (FOB). (refer para 7.14). Similarly, evidence of actual value of similar goods imported by Vishal Madan is available for the year 2009, 2010 and 2011, the minimum of which are USD 1.77, USD 0.99 and USD 1.15 (all C&F) respectively. In view of the above the minimum value of the goods similar to the goods imported by M/s Rightways Exim Pvt Ltd, M/s JKB Exim Pvt. Ltd. and M/s Hero Traders appears to be as follows"- Sr.No. Year Minimum value of similar Terms of Payment 1 2009 1.77 C & F 2 2010 0.99 C & F 3 2011 1.15 C & F 4 2012 1.40 FOB Now, we re-produce findings of Original Authority in respect of the same as under:- "Further, investigations have also revealed that the goods imported by M/s JKB Exim Pvt. Ltd., M/s Rightways Exim Pvt. Ltd. and M/s Hero Traders are similar to the goods imported by Sh. Vishal Madan through his firms. The actual transaction value of these goods is available for the years, 2009, 2010 and 2011. Therefore, the transaction value of all the remaining 365 number of consignments are re-determined at the minimum value of the similar go....