TaxTMI 
TaxTMI 
2023 (9) TMI 968
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....he duty in the Indian Customs Electronic Data Interface System ICES to clear imported "Misc. Furniture of Different Types etc" imported from M/s Hong Kong Overseas, China. The details of consignments are as under S.No B/E No. B/L No. Declared weight (kg) Weight found (kg) Difference (kg) 1 8216204/1 7.01.2017 9582375650/ 9.11.16 15760 24090 8330 2 7831426/ 15.12.2016 CGZ0755773/ 03.11.16 15630 23510 7880 3 7732792/ 05.12.2017 958149486/0 1.11.16 15650 24590 8940 4 8216202 /17.01.2017 GGZ0753599/ 27.10.16 15760 26720 10960 3. Receiving specific intelligence that the quantity of the goods was mis-declared in these four Bills of Entry, the Directorate of Revenue Intelligence DRI placed an alert, acting on which, the assessing officer ordered first check examination, i.e., directed the goods to be examined first before assessing the Bills of Entry. It was specifically indicated that the weight of the goods must be checked. Examination of the goods revealed mis-declaration of the quantity of the goods in terms of weight as indicated above. 4. Through its Customs Broker, the appellant submitte....
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....nt submitted as follows: (a) the imported goods were furniture which are not traded by weight but by number; (b) the appellants had themselves approached the customs authorities for first check, i.e., requested the authorities to first examine the goods and so it cannot be alleged that there was mis-declaration or suppression of the description or weight of the imported goods; (c) the Customs authorities failed to verify if the number of pieces imported were the same as in the invoice, which was possible even though the imported goods were in semi-knocked down (SKD) condition; (d) the allegation of mis-declaration therefore fails and any excess weight found during examination does not change the value declared by the appellant; (e) it was wrong on the part of the assessing officer to reject the transaction value under Rule 12; for this purpose they place reliance on: (i) Abhiman Impex vs CC (Import) Nhava Sheva 2019 (369) ELT 1255 (Tri-Mum) (ii) Nilkamal Ltd. vs Commissioner of Customs (Import) Nhava Sheva 2019 (370) ELT 923 (Tri-Mum) (f) since the appellant had filed the Bills of entry as per the invoices and ....
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....indicated in variety of ways- kg, tons, litres, number, running length, etc. depending on the nature of the goods. Often, the quantity of the same goods can be indicated in more than one ways and commercial transactions can be on any terms. However, in order for ICES to make meaningful compilation of the data and comparison of values and the customs Risk Management System RMS to determine the risk, a unique quantity code is necessary. For this reason, a unique quantity code (UQC) is fixed for each type of goods and the importer is required to indicate the quantity in that code. For furniture, it is weight in kg. The appellant grossly mis-declared the quantity of the goods and the excess quantity found was between 50 and 70% of the declared quantity in the four bills of entry. Therefore, the adjudicating authority was fully justified in rejecting the transaction value and re-determining it. 10. On the question of the appellant itself requesting for a first check, i.e., requesting for the goods to be examined first before assessment, he asserts that this submission of the appellant is not true. While filing the Bills of Entry, the importer has an option to request for first check ....
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....s cannot be determined under the provisions of sub-rule(1) of rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation.- (1) For the removal of doubts, it is hereby declared that:- (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 certa....
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.... to doubt the transaction value because what was imported was 50% to 70% more than what was declared in the Bill of Entry, invoice and other documents. 16. Having found the mis-declaration, the proper officer could call for information from the appellant. No specific method has been prescribed for calling for the information- it could be in writing or across the counter. The appellant submitted two letters in which it nowhere disputed that the quantity of the goods imported was more than what was declared. It also did not dispute that the value should therefore, be re-determined. It had also not provided any documents or explanation for the excess quantity of the goods found. On the contrary, it agreed to pay the differential duty and fine and penalty. Under such circumstances, the proper officer had a reasonable doubt about the transaction value and therefore, he correctly rejected the transaction value under Valuation Rule 12. 17. Having rejected the transaction value, the proper officer re-determined the value based on the value of contemporaneous imports of similar goods. Since the appellant had also waived both the Show Cause Notice and Personal hearing, neither was an S....
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.... Impex and Nilkamal Ltd. Both these cases are distinguishable inasmuch as there is nothing in either of these cases to indicate that the importer had accepted the quantity of the goods was more as is it in the present case. 20. Learned counsel also submitted that there is no evidence of any undeclared flow-back to the exporter or any evidence or any evidence or underhand payment and therefore, there is no reason to discard the transaction value. However, to reject transaction value under Rule 12, what is required is the reasonable doubt of the officer. Evidence of flow back to exporter or underhand payment are not necessary. 21. Learned counsel for the appellant also stated that they were forced to apply for waiver of show cause notice as they had suffered huge warehousing & shipping line demurrages and could not afford to continue the goods in custom warehouse to avoid these damages. This submission cannot be accepted since, in the first place, there is no evidence of the appellant being forced to waive the SCN or personal hearing. Secondly, the argument is inherently contradictory. Demurrages are generally steep and are levied by the custodian (Port Trust or CFS, etc.) to d....
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....tice to be issued to it or personal hearing to be provided, nor did it want any speaking order to be passed on the aforesaid Bills of Entry. It further stated that it was voluntarily relinquishing the rights provided to it under sections 124 and 17(5) of the Customs Act, 19625. The letter written by Niraj Silk is identically worded, except for agreeing to the enhancement of the value of the declared goods to 1.94 USD per kg. *** 5. The value of the declared goods was thereafter enhanced by the Assessing Officer to 1.80 USD per kg. in the case of Hanuman Prasad and to 1.94 USD per kg. in the case of Niraj Silk. 6. However, Hanuman Prasad and Niraj Silk challenged the order passed by the Assessing Officer on the Bills of Entry by filing 36 appeals before the Commissioner (Appeals). ***** 42. It has to be noted that the two importers, Hanuman Prasad and Niraj Silk, had not made any statement that they have accepted the value of the goods proposed by the Revenue to save demurrage charges nor did they state in the letter that the value was being accepted by them under protest and they would agitate the matter in appeal. It is only in this app....
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....this reason that they did not require any show cause notice to be issued to them or a personal hearing to be granted to them. The respondent is, therefore, not justified in asserting that the transaction value has been determined on the basis NIDB data. It was their acceptance of the value that formed the basis for determination of the value. The decisions relied upon by the respondent to support the contention sought to be raised are, therefore, of no benefit to them. 47. The general observations made the Commissioner (Appeals) in the impugned order that the value declared in the Bills of Entry were being enhanced uniformly by the Department for a considerable period of time was uncalled for. The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case. 48. Thus, for all the reasons abo....
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....he appellant filed the Bills of Entry as per the invoices and other documents, no mis- declaration can be alleged. It is also her submission that the appellant itself had sought first check of the consignment. Therefore, there was no mis-declaration in the Bills of Entry. 26. According to the learned authorised representative, the appellant had not sought first check of the consignment although such a facility was available in the ICES. First check was undertaken along with 100% examination of the consignment for the reason that there was a specific alert in the system by DRI regarding the mis-declaration of the quantity of the goods in this case. The appellant had self-assessed duty as per its declaration in the Bills of Entry. The actual quantity of goods imported was much more than what was declared and hence confiscation under section 111(m) was fully justified. 27. We have considered the submissions on this aspect. It is not possible to accept the submission of the learned counsel that so long as the declaration in the Bills of Entry is as per the invoices, no mis-declaration can be alleged. The charge of duty of Customs and all the restrictions and prohibitions are on t....
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....and Commissioner of Central Excise vs Aluminium Alloys Pvt. Ltd. 2018(364) ELT 3 (SC). In Scorpian International, a learned Member of the Tribunal held as follows: " 8. We find that in this case during the course of physical verification, the goods were not found as declared. Therefore, the appellant contended that it is an inadvertent mistake of the supplier of the goods. In that circumstances, the revenue has alleged that it is an afterthought. We find that in that such situation, the mala fide intention of the appellants are missing. As the appellant has placed order to the foreign supplier and he has filed the bills of entry as per the packing list and declaration made by the supplier in invoices. The appellant is not known about the correct declaration, description, quantity and value of the goods. It is a fact on record that the appellant has declared the description, quantity and value of the goods as per the invoice/packing list, therefore, the benefit of doubt goes in favour of the appellant that it is an inadvertent mistake of the supplier by non- supplying the goods as per the invoice/order/packing list. In that circumstances, the goods cannot be held liable for....
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....on fine and penalties imposed in the four Bills of Entry was as follows. 31. Section 125 does not prescribe how much redemption fine must be imposed but only places the upper limit of market value of the goods. It reads as follows: "Section 125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that where the proceedings are deemed to be concluded under the proviso to sub-section (2) of section 28 or under clause (i) of sub-section (6) of that section in respect of the goods which are not prohibited or restricted, no such fine shall be imposed: Provided further that, without prejudice to the provisions of the proviso to sub-section (2) of s....