TaxTMI 
TaxTMI 
2020 (10) TMI 285
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....99378 18.06.2019 18.06.2019 10 3665829 15.06.2019 15.06.2019 11 3665423 15.06.2019 15.06.2019 12 3648258 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 ....
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....any other reason. I also observe that the counter submissions made by the Revenue suggest that the appellant had given in writing his consent about paying differential duty on account of valuation of impugned goods. It is the case of Revenue that 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 ....
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....b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture or production; (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. T....
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....y by giving definite findings on all the issues involved in this case. (d) In the circumstances the directions to re-adjudicate the case becomes just an empty formality. It is clearly not an open remand so much so that the adjudicating authority will be bound to allow the decisions of the Commissioner (Appeals) both on the facts recorded therein as 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 matt....
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....een granted by the Addl. / Joint Commissioner concerned. 2. Filing of Kacha Bill of Entry (KBE) KBE shall be filed as a prior entry Bill of Entry in absence of IGM in the System. All other details and procedures shall be as in the case of a normal BE.' 3. Appraisement - All KBE's on submission shall be "System Appraised" on the basis of contents declared by the importer. A challan for payment of duty shall be generated automatically which 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....
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.... Authority of India 8. Entry of Gate pass- The entry of Custodians Pass details shall be entered as usual. 9. Audit of KBE - Audit of all such KBEs shall be carried out after clearance, on the basis of hard copies of the documents received from the Superintendent /DD Shed on daily basis. All KBE filed are to be audited within three days. The Importer will have to pay the duty, if short levied or not levied, immediately upon the same being communicated to him, failing which not only the action under law will be initiated for recovery of duty not paid/short paid, 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 eviden....
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....r the observations made in para 10, Commissioner (Appeal) has decided the issue himself upholding the assessment orders enhancing the duty. By doing so he has seriously constrained the original authority from examining the issue afresh and passing the speaking order following the principles of natural justice. 13. In terms of the public notice referred above, it is quite evident that allowing clearance against Kacha Bill of Entry, is a special dispensation made by the revenue for allowing speedy clearance of consignments of certain category of goods. Hence by availing this special dispensation, appellants are bound by 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 En....