TaxTMI 
TaxTMI 
2022 (10) TMI 1016
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....ntelligence and Investigation Branch [SIIB] examined the consignment 100% and found that the goods were under-valued and seized them. After retrieving the values of the same goods imported by the same party from the Customs Electronic Data Interchange [EDI], it found that the respondent had imported identical/similar goods at much higher prices. The matter was investigated further, statements were recorded and market survey was conducted. Shri Mayank Chachra, the proprietor of the importer firm submitted a letter dated 27.3.2018 & 28.3.2018 requesting for early release of his shipment without being issued a Show Cause Notice or being granted a personal hearing. 4. The Joint Commissioner adjudicated the matter and passed order in original in which, he rejected the transaction value of the goods under Rule 12 of the Customs Valuation (Determination of value of imported goods) Rules [Valuation Rules] 2007 and re-determined the assessable value under Rules 4 & 5 and ordered recovery of differential duty of Rs. 16,22,228/- under Section 28(1) of the Customs Act, 1962 [Act] and confiscated the imported goods confiscated under Section 111(l) and 111(m). He gave an option to the respond....
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....thority did not spell out the applicability of Rule 4 & 5 of the Rules for re-determination of value is factually incorrect. d) Reliance placed by the learned Commissioner (Appeals) on the ratio laid down by Hon'ble Apex Court in the case of Sanjivani Non - Ferrous [2019 (365) ELT 3(S.C.)] is not correct because in this case, data of contemporaneous imports was available unlike in Sanjivani Non-ferrous. e) Minor differences in technical specifications of item number 2 and 3 cannot justify the large difference in the value (refer Table B and C of Para 14 of the Order-In-Original). Even during market enquiry also, goods of ' unpopular brand' could not be found which supports the conclusion that the term 'unpopular brand' was simply inserted to justify undervaluation with intent of duty evasion. f) If contemporaneous value of goods is available for redetermination of values, question of considering the promotional prices as claimed by the Respondents does not arise and is totally irrelevant. g) The facts and circumstances of the case clearly indicate collusion between the Respondent Importer and the supplier of goods. Production ....
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....hita International vs Commissioner of Customs (Prev) Kolkata - 2008 (229) ELT 386 (Tri. - Mumbai) (v) Anil Kumar Tiwari vs Commissioner of Customs (Prev) Mumbai - 2016 (344) E.L.T. 1051(Tri. - Chennai) (vi) Carpenter Classic Exim Pvt. Ltd. vs Commissioner of Customs, Bangalore - 2006 (200) ELT 593 (Tri. - Bang.) (vii) Carpenter Classic Exim Pvt. Ltd. vs Commissioner of Customs (Import- 2009 (235) ELT 201 (S.C.) 7. On behalf of the respondent, the following submissions have been made. a) Review of the impugned order by the Committee of Commissioners is time-barred, and hence this appeal of Revenue is not maintainable. b) Imported items used for comparison and loading of value were not comparable. c) The Original Authority had also incorrectly applied Rules 4 and 5 for re-determination of value of impugned goods in as much as the earlier imports were more than 90 days before the import of impugned goods. d) Rejection of discounted price for two items (Sr. Nos. 1 and 2) by the Original Authority was improper and penalty for declaration of discounted price is not sustainable. e) Imposition of penalty under Secti....
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....- (a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Principal Commissioner of Customs or Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination....
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....er party preferring the appeal. **** Section 129D. Powers of Committee of Principal Chief Commissioner of Customs or Chief Commissioner of Customs or Principal Commissioner of Customs or Commissioner of Customs to pass certain orders. (1) The Committee of Principal Chief Commissioner of Customs or Chief Commissioner of Customs may, of its own motion, call for and examine the record of any proceeding in which a Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Principal Chief Commissioners of Customs or Chief Commissioners of Customs in its order. Provided that where the Committee of Principal Chief Commissioners of Customs or Chief Commissioner of Customs differs in its opinion as to the legality or propriety of the decision or order of the Princip....
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....ar as may be, apply to such application. 10. A plain reading of the above two sections shows that while section 129A deals with orders passed by the Commissioner (Appeals), section 129D deals with orders passed by the original authority. As per section 129D, if the original authority who passed the order is a Commissioner, it can be reviewed by a Committee of Chief Commissioners or Principal Chief Commissioners and if the original authority who passed the order is an officer lower in rank than the Commissioner, the Committee of Commissioners or Principal Commissioners can review it. The order of review in both cases must be issued within 3 months (extendable by the Board by 30 days) and an order may be passed directing an officer to apply to the Appellate Tribunal (if the impugned order is passed by a Commissioner) or Commissioner (Appeals) (if the impugned order is passed by a lower authority) for the determination of such points arising out of the decision or order as may be specified in the order. The officer who has been so directed must file the application within one month of receiving the order and the application will be dealt with as if it is an appeal. 11. By contra....
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....rom India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: Provided that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case....
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....elf does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially 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 discounts limited to exclusive agents; (d) the mis-declaration of goods in parameters such as description, quality, quanti....
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....ason that the model numbers of the goods imported in the disputed Bill of Entry dated 16.20.2018 and the model numbers of the goods imported earlier by the importer were the same as discussed in the order in original. 18. A further explanation of the importer was that though they were of the same model and the brand, they were low end versions meant to popularize among those making videos for YouTube, etc. and hence were priced lower. This argument also cannot be accepted for the reason, that the models of the imported goods nowhere specify that they were of a low end versions. It must also be noted that it is an undisputed fact that the importer maintains the website for the Zhiyun brand in India www.zhiyumindia.com and this website also did not indicate the availability of the so called low versions of the same models. The officers also conducted a market survey on 26.03.2018 and it was found that there were no such low versions in the market. In support of the contention that what were imported were lower versions of the same model, Shri Mayank Chandra, Director of the importer, in his statement before the officers mentioned that around 17-18th January 2018, they had received....
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....ime follow focus control, Tilt Angle 320o, Roll Angle 360o, Pan Angle 360o, Nt. Wt. 1250g Display Intiutive OLED Display Intiutive OLED Display Intiutive OLED Display Battery Runtime Min. 12h; Max. 18h Min. 12h; Max. 18h Min. 12h; Max. 18h Payload capacity 3.2 Kg. Max. 3.2 Kg. Max. 3.2 Kg. Max. Package accessories 1Tripod, 1 Battery Charger, 3 18650 Li-ion Batteries, 1 Micro to Mini USB Cable, 1 Sony Camera Control/Charging Cable, 1 Micro USB Cable, 1 User Manual, 1 Each Shot Cleaning Cloth, 1 Anti-slip Grip Tape 1 Tripod, 1 Battery Charger, 3 18650 Li-ion Batteries, 1 Micro to Mini USB Cable, 1 Sony Camera Control/Charging Cable, 1 Micro USB Cable, 1 User Manual, 1 Each Shot Cleaning Cloth, 1 Anti-slip Grip Tape 1 Tripod, 1 Battery Charger, 3 18650 Li-ion Batteries, 1 Micro to Mini USB Cable, 1 Sony Camera Control/Charging Cable, 1 Micro USB Cable, 1 User Manual, 1 Each Shot Cleaning Cloth, 1 Anti-slip Grip Tape Declared Unit Price USD 385 (CIF) USD 50 (FOB) USD 55 (FOB) B. Comparative chart for item Zhiyun Crane & Zhiyun Crane Plus 3-axis camera stabilizers: Parameters BoE No. 3985161 dated 13.11.2017 B....
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.... 10. Modes Low version - PF/L/F Normal Version-PF/L/F/POV/S 11. Motor Poles Low version - 36 Normal version - 42 12. Display PCB Low version - OLED 32 Bit Normal Version - OLED 64 Bit 13. Camera Charging Not available in low version 14. Joystick Control PCB Board Low version-Un programmed V 1.6 Normal version - programmed with EF lens support v 1.72 Parameters BoE No. 3985161 dated 13.11.2017 BoE No. 5233199 dated 16.02.2018 Description of goods Dual Handle for Camera 'Dual Stand (for Zhiyun Crane) Dual Handle (Unpopular Brand, parts of Camera Stand) Brand & type of product Zhiyun brand, Gimba Accessories Zhiyun brand Gimba Accessories Product weight 0.450 kg. 0.450 kg. Declared unit price USD 50 (CIF) USD 10 (FOB) 21. This finding of the Commissioner (Appeals) cannot be sustained for the reason that there is nothing in the import documents or the Bill of Entry to substantiate that the goods which were imported were of a lower version with lower features. As already discussed, the importer's assertion that the existence of such lower end versions were communicat....
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....A, to a penalty not exceeding ten percent of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five percent of the penalty so determined; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in th....