TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 285
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....14.06.2019 14.06.2019 13 3632895 13.06.2019 13.06.2019 14 3992003 09.07.2019 09.07.2019 15 3910289 03.07.2019 03.07.2019 16 3573291 08.06.2019 08.06.2019 17 3617290 12,06,2019 12,06,2019 18 3555812 07,06.2019 07,06.2019 19 3895913 02.07.2019 02.07.2019 2.0 These bills of entries were system appraised on the basis of the declarations filed by the Appellants. However on the basis of the certain market enquiries conducted, the department was of the view that goods were undervalued and hence asked the appellants to pay duty on the enhanced value. Since the goods were perishable, appellants paid the duty on enhanced value and took the clearance of these goods. Subsequently they challenged the demand of duty by way of nineteen appeals filed before the Commissioner (Appeal) stating the following grounds: I. That the above said Bs/E were filed on various dates and the appellant was asked to pay additional duty which was duly paid by the appellant and the appellant has discharged differential duty before issuance of show cause notice. II. That there is no computation of this duty amount, there is no indication as to which value has been adopted for this cal....
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....hat there was information of under-valuation by importers of fresh flowers and accordingly a detailed market survey was conducted on two different dates and values of different type of fresh flowers were determined based on such market survey and following deductive value method (Rule 7 of Customs Valuation Rules, 2007) It is worth observing that the impugned bills of entries were "Kacha Bill of Entry" which are "system appraised" based on self-declaration of the importers and an automatic duty challan is generated and printed along with the Bill of Entry without any human intervention for assessment of duty. As such, keeping in view the perishable nature of cargo, the Customs is left with the only option of issuing less charge demand 28(1)(b)(ii) and therefore the action on part of Revenue is justified. If the appellant was aggrieved, a request could have been made before the proper officer for provisional assessment of duty under section 18 of Customs Act, 1962 or for issuance of speaking order under section 17(5) ibid. 9. I find that prima facie the appellant is not in agreement with the manner by which his declared value has been proposed to be redetermined which resulted int....
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....uction; (e) the non declaration of parameters such as brand, grade, specifications that have relevance to value; o the fraudulent or manipulated documents. 10. During the course of personal hearing, it was represented that for 16 cases, there is a contract for the period from 01.05.2019 to 30.04.2021 which shows further reduction in the price. The said contract purposefully mentions goods of 'c' grade quality and the length as 'small and medium". The contract is conditional to the effect that "a constant purchase cycle to be maintained for the whole period". In this regard I observe that if the declared value involves exclusive price offer or abnormal discount and / or is subject to some condition, it cannot be accepted under section 14 ibid read with CYR, 2007 and that by itself will be a sufficient reason to reject the declared value. The price should be at arm's length i.e. ordinary competitive price and should not be influenced by any considerations. I also find that being direct delivery goods under KBE (Kacha Bill of Entry) procedure for fresh flowers, the Revenue issued 'less charge demand' and / or asked the appellants to pay differential duty as....
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.... well as the findings on the merits of the case. (e) Thus the findings recorded by the Commissioner (Appeal) at para 7, 8 & 10 which go contrary to the spirit of para 11, while remanding the matter for de-novo consideration, should be deleted from the order of Commissioner (Appeal) and matter be remanded in all nineteen cases back to the original authority for fresh consideration keeping all the issues open. 6.0 Arguing for the revenue learned Authorized Representative reiterates the findings of the Commissioner (Appeal) and submits that appellants had themselves sought the clearance of the goods on payment of duty as determined by the department and have also paid the same. Only after the clearance of the goods they have filed the appeal before the Commissioner (Appeal) who has adjudicated the appeals filed and remanded the matter back to the original authority for reconsideration as the assessment orders enhancing the duty on Bill of Entries were passed without following the principles of natural justice. Since the matter has been remanded back to the original authority there appears to be no justification for these appeals filed by the appellants and they should be dismissed. ....
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....hich shall be printed along with assessed copy of KBE. 4. Payment of Duty - After the challan for payment of duty has been generated, the duty shall be paid at the designated Bank namely, the State Bank of India, IACC branch, Sahar Mumbai, as usual, during the banking hours. Out-of- charge against B/E KBE would not be possible till duty has been paid in the Bank and Bank's message has reached the Customs EDI System. 5. Examination of Consignment - IFO has been designated to carry out examination of the cargo in respect of KBE. Before entry of "Examination Report" in the System, the IFO shall enter the IGM number, date and year along with the Inward date (Flight date) in the KBE, as provided by the importer. The following documents are to be presented to the IFO - a. Airway bill b. Invoice and Packing list c. Delivery Order, clearly mentioning the IGM no., Flight No. and date d. Other required documents such as Certificate / NOC from the Port Health Officer / Assistant Drug Controller / Plant Quarantine Officer, etc. wherever required. The IFO shall check the AWB No. and Date, HAWB No. and Date from the hard copy of the IGM presented by the Carrier. He shall scruti....
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....id, but the facility of direct delivery will also be liable to be withdrawn. After completion of audit the disposal of the KBE shall be in the same manner as in case of a normal B.E. 10. Round the clock Delivery- KBEs would be accepted and processed round the clock, excepting for about two hours i.e. between 2300 to 0100 hours, when the system would not be available for operational reasons. 11. Difficulties, if any, in the implementation of KBE procedure, may be brought to the notice of the System Manager /EDI." 10.0 From the above public notice it is quite evident that the procedure of Kaccha Bill of Entry is a special procedure for facilitating the immediate clearance of consignments of certain categories of goods. Public notice makes it clear that Kaccha Bill of Entry shall be filed as a prior bill of entry and processed accordingly. It also prescribes that these Bill of Entries shall be system appraised on the basis of the declarations made by the importer and the duty payment challan shall be system generated. In case the department finds that any duty has been short levied or short paid against a Kacha Bill of Entry, then it will communicate to the importer about short....
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....the requirements laid down by that public notice, specifically in respect of the payment of duty as per the assessment made. Hence we do not find any merits in the submissions of the appellants that they were coerced and forced to pay the enhanced duty. Further we find that appellants had avoided the procedure as prescribed by not filing the prior bill of entry and getting it appraised beforehand as prescribed. The grievance of the appellants against the suo moto enhancement of the duty by the Customs would not have been there if they had filed the Kacha Bill of Entry as Prior Bill of Entry as prescribed and had got it system appraised. It is also not very clear why Customs had allowed filing of these Kacha Bill of Entry in manner contrary to that prescribed by the Public Notice. Both the sides were not in position to explain in this regard during the hearing before us. 14. Public Notice 48/2003, very clearly stipulates that the demand for any duty short paid, revenue should communicate the same to the appellant, who shall pay the same immediately, or else legal action for recovery of the duty short paid will be initiated and the facility of clearance against Kacha Bill of Entry w....