TaxTMI 
TaxTMI 
2019 (8) TMI 1697
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....s, 1988 as detailed in Annexure A to the SCN. iii) The imp[orts of software made under Bill of Entry No 599588 dated 12.04.206 and the software "Da Vinci 2K" is reassessed under Rule 5(1)(b) of the Customs Valuation rules, 1988 as detailed in Annexure A to the SCN. iv) The two software having total declared assessable value of Rs. 1,43,69,68/ and total revised assessable value f Rs. 2,54,4,937 is confiscated under section 111(m) of the Customs Act, 162. As per provision section 125 of the Customs Act I give the importer an option to pay fine of Rs. 5,00,000/- in lieu of confiscation and redeem the goods. v) The demand of duty amounting to Rs. 21,17,500/- is hereby confirmed as detailed in Annexure to the SCN, under the provisions of Section 28 of the Customs Ac, 12 for invoking extended period of five years along with the interest amounting to Rs. 3,83,122/- under Section 28AB of the Customs Act, 1962. vi) The amount of Rs. 22,15,150/-deposited by M/s PFL vide Cash No 93 dated 25.09.2007 is adjusted towards duty demanded at (v) above and to the extent of Rs. 97650/- towards interest payable as at (v) above. vii)&n....
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....at the goods have been undervalued by them as the value declared by them is the transaction value between them and the foreign supplier. Without rejecting the transaction value the value adopted by the revenue, is contrary to the decision of Apex Court in case of Eicher Tractors [2000 (122) ELT 321 (SC)]. • Since the goods were not seized and provisionally released the same cannot be confiscated and redemption fine imposed {Carina Creations {2016 (9) TMI 75 CESTAT Kolkata, Weston Components 2000 (1) TMI 45 SC. • Since there is no case of misdeclaration the goods no penalty could have been imposed on them under section 112(a) and (b). 3.3 Arguing for the revenue learned authorized representative while reiterating the findings in the impugned order 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 There is no dispute in respect of the fact that duty could have been demanded against the goods cleared against the assessment order on Bill of Entry. Commissioner has in para 41.4 relying on the decisions n case of Priya Blue Industries [2004 (172) ELT 145 (SC)], J....
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....e we do not find any merits in the submissions made by the appellant, relying on the decision in case of Eicher Tractors. In case of Viral Copier Services [2011 (263) ELT 280 (T-Chennai)], tribunal held as follows: "11. In the course of argument the learned DR appearing for the Department had drawn our attention to the decision of the Hon'ble Supreme Court in the case of Collector of Customs, Calcutta v. Sanjay Chandiram - 1995 (77) E.L.T. 241 (S.C.) which held that Rule 3 of the Customs (Valuation) Rules, 1988 providing for acceptance of transaction value is not a rule of invariable application regardless of the circumstances. In cases of misdeclaration the irresistible conclusion would be that if the real value of the imported goods has not been shown in the invoices, then the declared value cannot be taken as the transaction value. She has also drawn our attention to the Hon'ble Supreme Court's decision in the case of Radhey Shyam Ratanlal v. Commissioner of Customs - 2009 (238) E.L.T. 14 (S.C.) which holds that deemed value under Section 14(1) of the Customs Act, 1962 would prevail when price declared does not reflect the price at which the imported or like goods....
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....y imposed under Section 114A of Custom Act, 1962 cannot be faulted with in view of the Hon'ble Apex Court decision in case of Rajasthan Spinning and Weaving Mills [2009 (238) ELT 3 (SC)]. However we find that while imposing the penalty under Section 114A, Commissioner has imposed penalty equivalent to duty plus interest, which is contrary to provision of the section itself wherein section prescribes that the penalty impossible to be equal to Duty or Penalty. Hon'ble Supreme Court has in case of U Enterprises [2007 (218) ELT 481 (SC)] has clearly stated as follows: "9. After hearing learned counsel for the parties, we find substance in the first submission of the learned counsel for the appellants, that the amount of penalty could not be more than the amount equal to the duty chargeable. A bare perusal of Section 114A makes it clear that the liability to pay penalty can be equal to the amount of duty and could not exceed the payable duty. Hence, the penalty imposed was against the express provisions of law. In these circumstances, we reduce the amount of penalty under Section 114A to Rs. 4,91,000/-." Tribunal in case of B Suresh Vasudev Baliga [2015 (329) ELT 433 (T-Bang....
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....cation of impugned goods and imposition of redemption fine on the same. He submitted that there was no seizure at all or ever, either of the phones or the CDROMS imported by the appellants. Appellants had not executed any bond for provisional release of any goods in terms of Section 110A of the Customs Act, 1962. He further submitted that the bond mentioned by the Original Authority in his order dated 18-8-2006 is for the clearance of goods on payment of provisional duty. In the present case in the absence of any seizure thereafter provision release of goods under bond, confiscation or imposition of redemption fine are not sustainable. We find that reliance placed by Revenue on the decision of Hon'ble Supreme Court in Weston Components Ltd. v. CC, New Delhi (supra) is misconceived. In the said case, there was a seizure and provisional release against a bond, undertaking to produce the goods when called for. In such situation, the Hon'ble Supreme Court held that redemption fine can be imposed if the goods are already cleared. Since, such release of goods is on execution of bond such fine was justified. We find that the Hon'ble Punjab & Haryana High Court in CC, Amritsar v. Raja Impe....
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....under proper bond. In the present case in the absence of such events, redemption fine imposed is not sustainable." Following the said decision of Larger Bench of Tribunal we do not find any merits in the order of Commissioner confiscating the goods and imposing the redemption fine. 4.7 Commissioner has in impugned order, held Appellant 2 an Appellant 3, liable for penalty under Section 112(a) and (b) by recording as follows: "47. The question whether this case there is misdeclaration warranting demand of duty invoking extended period under Section 28 was considered. As is seen from findings above this is clearly a case where the goods have been mis-declared in the matter of its description as well as its value. So it s clear that extended period can be invoked. Since such misdeclaration makes the god liable to confiscation, the persons responsible for such actions namely Shri Namit Malhotra and Shri Nishant Fadia are liable to penalty under Section 112 (a) and (b of the Customs Act. Shri Namit Malhotra who was the Managing Director of the firm had a higher responsibility that Shri Nishant Fadia who was Chief Financial Officer." The Commissioner has held the Appellant 2 ....