TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 550
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....learance of the goods described as 'Defective Tinplate Coil and Defective Tinplate Misprint Sheets'[the goods] under Customs Tariff Heading [CTH] 7210 12 90. The declared unit price of the goods in the three Bills of Entry is as follows: S.No. Bill of Entry No. Date Description of the goods Declared Qty. (MTS) Declared Unit Price (USD/MTS) (1) (2) (3) (4) (5) (6) 1. 8375933 04.08.2020 Defective Tinplate Coil 75.31 435 2. 8390733 06.08.2020 Defective Tinplate Misprinted Sheet 141.13 330.95 (Euro 287) 3. 8390321 06.08.2020 Defective Tinplate Misprint Sheets 117.91 330.95 (Euro 287) 3. The goods were self-assessed by the appellant under section 17(1) of the Customs Act. 4. The Special Investigation Intelligence Branch [SIIB] investigated the aforesaid three Bills of Entry and noticed that the declared price of the goods was below the Minimum Import Price and, therefore, violated Policy Condition No. 1 of the ITC(HS) Import Policy which prescribed that the specified defective items can be imported free, except those for which the CIF value of imports was below the value specified for the said items. The relevant portion of the said Import Policy....
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....ring observed that since the declared value in the three Bills of Entry was below the minimum import price, the imported goods became 'restricted' goods. The Additional Commissioner also noticed that similar goods were being assessed at USD 540 as per the Contemporaneous Import Data. The Additional Commissioner also noted that since the importer had undervalued the imported goods and, therefore, misdeclared the value in the entry made in Bills of Entry under section 46(1) of the Customs Act, the goods became liable for confiscation under section 111(m) of the Customs Act. The Additional Commissioner thereafter proceeded to re-determine the assessable value. For the defective tinplate coil, the value was determined at Euro 540 per MTS instead of 435 per MTS as declared by the appellant. The assessable value of defective tinplate misprint sheet was determined at Euro 470.5 per MTS instead of Euro 287 per MTS. The operative part of the order passed by the Additional Commissioner is reproduced below: "ORDER (i) I reject the declared assessable value of goods, as mentioned in column (4) in Table-D below, in terms of Rule 12(1) of Customs Valuation (Determination of Value of Imported ....
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....clear bifurcation of declared values and redetermined values in respect of each bill of entry and worked out duty payable for each bill of entry. Thus, I find no infirmity in this regard. 5.4 Also, I note that there is clear cut violation of FTP as the declared unit price of the impugned goods is below the Minimum Import Price (MIP) of USD 465 per tonne - which is in violation renders the impugned goods as "Restricted" and thus the same were correctly confiscated under Section 111(o). The contention of the Appellant that impugned goods were not restricted has no force and is not sustainable. 5.5 Insofar as rejection of declared value and re-determination of value is concerned, I note that the same has been done on the basis of contemporaneous data and details of relied upon B/E have been mentioned in the impugned Order. I find the ratio of cited case law of Sanjivani Non ferrous Trading Pvt. Ltd (supra) is applicable in the instant case. Thus, rejection of declared value under Rule 12 of CVR, 2007 and re-determination of value under rule 5 of CVR, 2007 is noted to be in order. The Appellant has not been able to counter the same and has vaguely mentioned that other importers wer....
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....price actually paid or payable for the goods when sold for export to India where the buyer and the seller of the goods are not related and the price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules made in this behalf. The Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 [the Valuation Rules] have been framed in exercise of the powers conferred by section 14 of the Customs Act. Rule 12 deals with rejection of the declared value and is reproduced below : "Rule 12. Rejection of declared value. - (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule(1) of rule 3. (2) At the request of an importer, the proper....
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....rs to raise doubts on the truth or accuracy of the declared value based on certain reasons, which may include any of the six reasons contained therein, one of which is that there is a 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. 15. In the present case, the proper officer doubted the value of the goods declared by the appellant since it was below the Minimum Import Price and sent a letter dated 09.09.2020 to the appellant. The appellant, in response to the aforesaid communication, categorically stated that the issuance of show cause notice may be waived and personal hearing may also not be given. The appellant also stated that it was the first mistake and it was not aware of the policy restriction. The appellant also categorically stated that it was ready to pay the duty amount as per the assessment value of the goods, which the appellant believed was usually on the higher side than the minimum value. 16. Section 124 of the Customs Act does provide for issuance of a show cause notice and personal hearing but in view of the specific request made by th....
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....les. However, as per NIDB import data, there are no identical goods available for determination of value as per Rule 4 of CVR,2007. Further, Rule 5 the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 stipulates that subject to the provisions of rule 3, the value of imported goods shall be the transaction value of similar goods sold for export to India and imported at or about the same time as the goods being valued; Provided that such transaction value shall not be the value of the goods provisionally assessed under section 18 of the Customs Act, 1962. The actual assessable value of the similar goods is USD 540 per metric tonne. Hence the re-determined value of the imported goods is USD 540 per metric tonne as per Rule 5 of CVR, 2007." 20. It needs to be remembered that the importer had specifically, in writing, agreed to pay the duty amount as per the assessment to be made which he realised would be higher than the minimum value. Despite this categorical statement contained in the communication submitted by the appellant to the Assistant Commissioner, learned counsel for the appellant submitted that at best only the minimum value contained in the import p....
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.... did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the consented value in effect becomes the declared transaction value requiring no further investigation or justification. To allow the appellant to contest the consented value now is to put Revenue in an impossible situation as the goods are no longer available for inspection and Revenue rightly did not proceed to further collect and compile all the evidences/basis into a Show Cause Notice as doing so, in spite of the appellant having consented to the enhancement of value and requested for no Show Cause Notice, could/would have invited allegation of harassment and delay in clearance of goods. When Show Cause Notice is expressly foregone and the valuation is consented, the violation of principles of natural justice cannot be alleged. In the present case, while value can be challenged but such a challenge would be of no avail as with the goods not being available and valuation earlier having been c....
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....al in Vikas Spinners, had also observed as follows : "4. The learned Advocate also cites the decision of the Tribunal in the case of M/s. Vikas Spinners v. C.C., Lucknow - 2001 (128) E.L.T. 143 (Tri.Del.) in support of his arguments. We find that the said decision clearly holds that enhanced value once settled and duty having been paid accordingly without protest, importer is estopped from challenging the same subsequently. It also holds that enhanced value uncontested and voluntarily accepted, and accordingly payment of duty made discharges the burden of the department to establish declared value to be incorrect. In view of the fact that the Appellants in this case have not established that they had lodged any protest and on the contrary their letter dated 21-4-1999 clearly points to acceptance of the enhanced value by them, the cited decision advances the cause of the department rather than that of the Appellants contrary to the claim by the learned Counsel." (emphasis supplied) 26. In BNK Intrade (P) Ltd. vs. Commissioner of Customs, Chennai 2002 (140) ELT 158 (Tri.-Del), the Tribunal observed as follows : "2.............. It is also to be noted that the importer had also ....