TaxTMI 
TaxTMI 
2018 (12) TMI 1923
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....tar Aniseeds" by the petitioner ranged from Rs. 62.86/- and Rs. 70.88/- per Kg, a comparison with the import made by a Mumbai importer from the very same supplier revealed that the value was Rs. 138/- per Kg. The respondent therefore formed a tentative conclusion that the import price of "Star Aniseeds" should have been above Rs. 130/-. 3. The Directorate of Revenue Intelligence(D.R.I.), New Delhi, was addressed on 21.04.2011 to verify the genuineness of the invoices at the supplier's end. It brought forth two documents from China Customs. An English translation was provided by the Consulate General of India, at Hong Kong. A verification of the comparative chart of value declaration before the Indian Customs and China Customs revealed the following details:- Declaration made by Unik before India Customs Declaration made by Unik before India Customs S. No. Name of the supplier at overseas Name of the importer Bill of Lading No. & Date Invoice No. & Date Container No. (1) (2) (3) (4) (5) (6) 1. Prokeun Trading Co. Ltd., Hong Kong Unik Traders, Bangalore HLCUHKG091 2AU ND3 dated 31.12.2009 29377 dated 30.12.2009 HLXU 6474....
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.... dated 22.05.2014. The respondents informed the petitioner that the personal hearing will be held on 24.09.2014. The petitioner continued to make certain requests and also asked for adjournments. The petitioner continued to insist of being furnished with the translated copies of the documents relied upon in the show cause notice. The petitioner also wanted to cross examine the officers who have been connected with the transactions. The respondents however declined to accede to the aforesaid requests. Finally, the impugned order dated 16.01.2015 was passed by the respondent, holding that the goods already cleared are liable for confiscation. The value declared by the petitioner in respect of 59 bills of entry stood rejected. The value of two consignments received from the overseas supplier as indicated above was taken as actual transaction value. It was further held that, that would be taken as a contemporaneous value in determining the value of the remaining 57 numbers of bills of entry. The petitioner was called upon to pay the differential duty of Rs. 9,21,42,713/- and also pay appropriate interest and penalty equal to the duty. A further penalty of Rs. 1 Crore was levied under S....
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....which are quasi judicial in nature." 10. It is a basic principle of administrative law that when an authority is relying on certain documents which are in a language not known to the noticee, the translated copies thereof must be made available. The office of the respondent vide reply dated 10.09.2014 took the stand that these documents were already seen by the noticee on 19.03.2014 and that he had endorsed on the documents for having seen. The English translation of the documents is also available on the documents themselves. The request made by the petitioner was thus rejected in the above terms. 11. In their interim reply dated 22.05.2014, the petitioner also sought cross examination of all the officers who assessed, audited and examined the case pertaining to the 59 bills of entry impugned in the show cause notice. This request was also rejected. 12. As rightly contended by the learned Senior counsel appearing for the petitioner, the procedure adopted by the respondent is not in consonance with the scheme laid down in Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. It contains 13 Rules and a Schedule. Rule 2 defines terms such as identical goo....
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....ly in accordance with rules 4 to 9. (ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include. (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed; (b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price: (c) the sale involves special discount limited to exclusive agents; (d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture of production; (e) the non declaration of parameters such as brand, grade, specifications that have relevance to value; (f) the fraudulent or manipulated documents." 14. A careful reading of Rule 12 indicates that the proper officer must first call upon the importe....
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....eard, the proper officer continues to entertain his doubt, it shall be construed that the transaction value on such imported goods cannot be determined under the provisions of the sub-rule(1) of Rule 3. He may then pass an order rejecting the declared value. That is Step-3. STEP-4 Where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with Rules 4 to 9. That is Step-4. 17. A plain reading of the aforesaid rules clearly indicates that once the value declared by the importer is rejected, the proper officer will have to determine the value vide proceeding sequentially in accordance with Rules 4 to 9. There is no question of invoking Rule 3 in such cases. Therefore, I have to necessarily hold that the respondent has completely misdirected himself in law. 18. The respondent is a Quasi Judicial authority. No doubt, the strict principles of THE INDIAN EVIDENCE ACT, 1872, are not applicable. But then, the principles of natural justice cannot be given a go-bye. The documents on which reliance is placed by the respondent are in a foreign language. The petitioner requested in writing that he should be given an authenticated ....
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....re no rules governing the valuation of export goods. That must be done based on Section 14 itself. In the present case, the Department has charged the respondentimporter alleging mis-declaration regarding the price. There is no allegation of mis-declaration in the context of the description of the goods. In the present case, the allegation is of under-invoicing. The charge of underinvoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word "value" is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14 (1). The value to be declared in the Bill of Entry is the value referred to above and not merely the invoice price. On a plain reading of Section 14(1) and Section 14(1A), it envisages that the value of any goods chargeable to ad valorem duty has to be deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). It is made clear that Section 14(1) and Section 1....
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....lue of the documents on which reliance is placed by the Department in support of its allegation of undervaluation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14 (1) speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. 8. ...In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transact....