TaxTMI 
TaxTMI 
2023 (1) TMI 59
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....e appeal is being decided on merits. 3. The records reveal that the respondent M/s Tirupati Overseas had filed a Bill of Entry dated 25.04.2016 for clearance of imported goods packed in 962 cartons/plastic gunny bags having a gross weight 25950 Kgs. The value of the goods shown in the invoice was USD 25339.20. The entry made in the Bills of Entry is as follows: Table-A Sr. No. Description of goods as declared in the Bill of Entry Total No. of Pcs./Weight inkg) No. of Cartoons 1. Cartoon Tape 840 pieces 42 2. Electric Ballast (choke) 26000 pieces 130 3. Glass Seed Beads 620 kgs 25 4. Hair Bow Raw Accessories Articles 21204 kgs. 645 5. Mosquito Racket 7200 120 4. The goods were examined by the officers and details of the physical examination was recorded under a Panchnama dated 28.04.2016. It appeared to the officer that the value of the item at Serial No. 4 had been mis-declared and mis-classified. Further investigation was carried out and Deepak Garg, son of Anjani Kumar Garg, duly authorized by the proprietor, appeared on 09.05.2016 and gave his statement under section 108 of the Customs Act. He state....
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....ial assessment of the said Bill of Entry, I order for recovery of Rs. 6,77,868/- (Rupees Six Lakh Seventy Seven Thousand Eight Hundred and Sixty Eight only) from the importer. vi) I impose penalty of Rs. 2,00,000/- (Rupees Two Lakh only) on M/s Tirupati Overseas, Shop No. C-1/1, Pocket-1, Sector 11, Rohini, New Delhi under Section 112 (a/b) of the Customs Act, 1962." 6. Feeling aggrieved, the importer filed an appeal before the Commissioner (Appeals) who, as noticed above, allowed the appeal by order dated 25.04.2018. The relevant portion of the order passed by the Commissioner (Appeals) is as follows: "I find from the above cited judicial pronouncements that in respect of classification issue, the evidences gathered by the Revenue to prove its claim have vital role. In the present case, the Department‟s whole case is based on statements dated 09.05.2016 and 13.05.2016 of Sh. Deepak Garg, authorized signatory of the appellant. However, on perusal of the Order-in-Original, I find that he agreed to pay differential duties only after given him to understand the fact by the investigating authority that the impugned goods is Resin/plastic beads classifiable under CT....
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....l of Entry submitted by the importer as they were grossly undervalued as compared to the contemporaneous import data and since a categorical statement was made on behalf of the importer under section 108 of the Customs Act that the importer agreed for enhancement of the value as shown in the chart and did not require any personal hearing or a speaking order, the Assessing Officer enhanced the value. Thus, once having accepted the value of the goods it was not open to the importer to challenge the value of the goods, nor was it open to the importer to file an appeal for the reason that the requirement of not passing any speaking order is to reduce litigation; (ii) The decisions relied upon by the Commissioner (Appeals) are clearly distinguishable on facts, as in the present case, a statement had been made by the importer on various dates voluntarily accepting the enhanced value based on contemporaneous data; and (iii) The Commissioner (Appeals) was not justified in discarding the statement made on behalf of the importer for the reason that mere acceptance is not good enough to recover the duty and the department should have adduced clear and cogent evidence that ad....
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.... (i) This rule by itself 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 special an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the misdeclaration of goods in parameters such a....
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....ction (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained an thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his accepta....
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...., therefore, did not want any show cause notice to be issued to or personal hearing to be provided. The importer also specifically stated that he did not want a speaking order to be passed on the Bill of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance 20. It is no doubt true that the value of the imported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the rules to be made in this behalf. The 2007 Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may ask the importer to furnish further information. Rule 12(2) stipulates that it is only if an importer makes a request that the proper officer shall, before taking a final decision, intimate the importer....
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....per officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression grounds for doubting the truth or accuracy of the value declared has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the reason to doubt exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared." 22. Despite the specific statements made by the importer under section 108 of the Customs Act, it was sought to be contended by the importer in the Appeal filed before the Commissioner (Appeals) that the transaction value of the imported goods alone should have been treated to be the value of the goods, as provided for under rule 3(1) of the Valuation Rules. 23. In this connection, it would be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs. Commissioner of Customs, Jodhpur [2015 (326) ELT 185 (Tri.-Del)], wherein the Tribunal, after making reference to the decisions of the Tribunal in Vikas Spinners ....
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....here was no evidence that the assessee had consented to enhancement of value." (emphasis supplied) 24. In Vikas Spinners, the Tribunal dealing with a similar situation, observed as under: "7. In our view in the present appeal, the question of loading of the value of the goods cannot at all be legally agitated by the appellants. Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999. After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5-1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the p....