TaxTMI 
TaxTMI 
2022 (10) TMI 1018
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....the goods imported under B/E No.237699 dated 30.11.2010 as mentioned supra and I re-determine the value to Rs.17,90,422/- (Seventeen Lakhs Ninety Thousand Four Hundred Twenty Two only) as already in terms of Section 14 of the Customs Act, 1962 read with Rule 9 of Customs Valuation (determination of price of imported goods) Rules, 2007 and the B/E be finally assessed to duty with an assessable value of Rs 17,90,422 (b) I order to confiscate the consignment imported under B/E No. 2376990 dated 30.11.2010 valued at Rs 17.90.422/- (re-determined value). under Section 111(m) of the Customs Act, 1962. The said goods are not physically available for confiscation, however as the same were cleared provisionally against a bond, I impose redemption fine of Rs. 8,00,000/ (Rupees Eight Lakhs only) on M/s. West Wing Infrastructures Pvt. Ltd., Ahmeadbad in lieu of confiscation under Section 125 of the Customs Act, 1962. (c) I order to recover the differential duty amounting to Rs. 3,08,111/ (Rupees Three Lakhs Eight Thousand One Hundred Eleven only) as discussed at para 15.1 of the SCN recoverable on the re-determined value of the imported goods from them in terms of proviso to ....
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....1 dated 28.09.2011 Penalty Rs. 1,00,000/- [(u/s-112(a)] Rs. 1,00,000/- [u/s.-114AA] The Commissioner (Appeals) in the impugned order rejected the appeal except setting aside the penalty imposed under Section 114AA on appellant No. 2 Shri Kalpesh D. Prajapati, however, the penalty of Rs. 1 Lakh under Section 112(a) was maintained. Being aggrieved by the order in appeal, both the appellants have filed the present appeals. On behalf of the appellants, Shri Shyamsunder Takalkar (Authorized Representative) appeared and he submitted a written brief vide letter dated 17.10.2022, which is taken on record. 3. Shri G. Kirupanandan, Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that there is a clear admission by all the witnesses in their statements that there was under valuation in respect of imported furniture and the undervalued amounts have been transacted through hawala to China. He submits that even the appellants have not rebutted the allegation made in both the orders passed by the lower Authority. Therefore, there is no substance in appeals filed by the appellants....
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....stoms Act, 1962 have duly corroborated the facts of undervaluation. Thus, there are admitted facts of undervaluation which is very much available on records. Thus there is no reason to deny the same nor did the appellants deny either. 8.3 As regards the appellant's contention that the department has considered higher value of the goods at Rs. 17,90,422/- instead of the correct assessable value of Rs. 13,48,384/-(USD 29735.5) mentioned in the revised commercial invoice, I find that the appellants said grievance is not valid in light of the back ground facts of the case and the adjudicating authority has given fair findings thereon in para 14 in the impugned order, which is reproduced below for sake of convenience. I do not find any infirmity in the methodology used by the adjudicating authority. "14. In terms of Section 14 of the Customs Act, 1962, the value of the imported goods shall be transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for the delivery at the time and place of importation, where buyer and seller of the goods are not related and price is the sole consideration for th....
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....e, the correct value can be obtained after adding this additional amount paid through unauthorized channel. The actual value in terms of Rule 9 of the Customs Valuation (determination of price of imported goods) Rules, 2007 shall be arrived by addition of this additional amount of Rs. 1,36,013/- paid to the exporter unlawfully. The re-determined assessable value comes to Rs. 17,90,422/- as shown here below: Declared Invoice Value USD Declared Invoice Value In Rs Ex.Rate 1.00 USD =44.90 INR Additional amount paid in Rs. Total CIF Value-in Rs. Landing charge@ 1% Re determined Assessable Value in Rs. 14180 6,36,682/ 11,36,013/ 17,72,695/- 17,727/- 17.90.422/ 8.4 I am of the view that once mis-declaration of the value of goods is established, invoice value will not reflect transaction value. Hon'ble High Court of Kerala in its judgment in case of PV Ukkru International Trade 2009 (235) ELT 229(Ker) has clearly held that 'when there is mis-declaration, transaction value automatically goes and the department gets the right to question the correctness of valuation by the importer once there i....
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.... that "the fine shall not exceed market price of goods confiscated less in case of imported goods the duty chargeable thereon". There is no market inquiry available in the present case to determine market value of goods. In absence of market value, [which is assessable value + duty + margin of profit + other costs( transport, insurance etc.)] one can always adopt, for guidance, at least the assessable value (which does not include Customs duty), for determining the fine. In the present case, the assessable value is Rs. 17 lakhs and as per Section 125, the fine can be imposable upto Rs. 17 lakhs. Considering the gravity of offence, fine of Rs. 8,00,000/ imposed by the adjudicating authority cannot be considered as high and thus there is no reason to interfere therewith. 8.6 However, I find that the adjudicating authority erred in imposing penalty under Section-112(a) as well as under Section-114AA on the appellant No.2 for a single offence. It is settled law that for a single offence a person cannot be penalized twice. Thus, the penalty under Section 114AA needs to be struck down. Considering this fact, I hold that penalty of Rs.1,00,000/- would continue to rest on the appe....