TaxTMI 
TaxTMI 
2022 (10) TMI 1016
X X X X Extracts X X X X
X X X X Extracts X X X X
....signment 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 respondent to redeem the goods on payment of fine of Rs. 9,93,000/-. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 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 of the offer letter long after the seizure made by the Customs and the claim of Wechat message supposedly received ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....51(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 Section 114AA of the Act is not sustainable. f) Demand in the case is made under Section 28(1) which does not involve collusion, mis-statement or suppression of facts. Penalty on the Respondent is, therefore, not sustainable. g) The grounds of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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; (c) payment of drawback as provided in Chapter X, and the rules made thereunder: Provided further that] the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oms 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 Principal Commissioner of Customs or Commissioner of Customs, it shall state the point or points on which it differs and make a reference to the Board which, after considering the facts of the decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs, if is of the opinion that the decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs is not legal or proper, may, by order, direct such Commissioner or any othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmissioner, 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 contrast, section 129A deals with review of orders passed by the Commissioner (Appeals) by a Committee of Commissioners or Principal Commissioners. No time limit for review is prescribed in this section. However, sub-section (3) of section 129A prescribes a time limit of 3 months from the date of communication of the impugned order for filing an appeal by either side. It may happen that the appeal is filed late with an application for condonation of delay and if the application is allowed, the appeal is admitte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ransportation 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 may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section: (iv) the additional obligations of the importer in respect of any class of imported goods and the checks to be exercised, including the circumstances and manner of exercising thereof, as the Board may specify, where, the Board has reason to believe that the value of such goods may not be declared truthfully or accurately, having regard to the trend of declared value of such goods or any other relevant crit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ruth 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, 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; (f) the fraudulent or manipulated documents. 15. Thus, Rule 12 provides that if the proper officer has reason to doubt the truth and accuracy of the transaction value, he can call for further information and if no such information is provided or after considering the information so provided, the proper officer still has a reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the valuation cannot be done as per the transaction value. The grounds on which the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....un 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 information about the low end versions from the overseas supplier on WECHAT and that he had, after the case was booked, requested the supplier to send a letter again on gmail and he had received it the previous day. When asked for the WECHAT message which was received, he could not produce it. Thus, we find that the contention that the imported goods were lower versions of the same models of Zhiyun brand is not supported either by the imported documents or by the declaration in the Bill of Entry nor was the existence of such lower versions indicated on the website of Zhiyun in India maintained by the importer itself and no such lower versions were also found in the market survey. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 BoE No. 5233199 dated 16.02.2018 Description of Goods Camera Stand (Zhiyun Crane, Type Monopod) Camera Stand (3 Axis Stablizer-CRA01, Unpopular Brand) Key features Customized and suitable for almost all mirrorless cameras, Core techniques of the fifth Zhiyun honeycomb low level control arithme, tiny butamazing, Compatible with 18650 and 26650 batteries, 3 axes 360 degrees unlimited rotation, Firmware upgrade via APP Zhiyun's mature attitude algonthm, HF measuring range from idle load to full load, Multiple professional servo motors, Built-in IMU and incredibly precise and powerful brushless motor. Point of View (POV) Mode, Intelligent object tracking, motion memory, night lapse, Tilt Angle 360o, Pan Angle 360o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 communicated to it by WECHAT could not be substantiated because no such WECHAT message was produced. No such lower end versions were found during the market survey nor were any such low end versions put up on the website of the company maintained by the importer itself. The Commissioner (Appeals) has erred in relying on an email obtained by the importer after the case was booked when all other evidence is to the contrary. Therefore, the Commissioner (Appeals) was not correct in setting aside the rejection of the transaction value and its re-determination under Rules 4 & 5 by the original authority. 22. As far as the confiscation of the goods and imposition of penalties are concerned, the relevant provisions are as follows: 111. Confiscation of improperly imported goods, etc.--The following goods brought from a place outside India shall be liable t....