TaxTMI 
TaxTMI 
2023 (10) TMI 362
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.... undeclared goods which appeared to be white/blue colour rough stone weighing 271.75 carats were also found. Thereafter, the Gems and Jewellery Export Promotion Council, Jaipur vide their test reports dated 31.12.2021, confirmed that the three packets of undeclared goods were Natural Rough Diamonds, the import of which (rough diamonds) was restricted in terms of Policy Condition No. 3 of chapter 71 of ITC (HS) 2017, Schedule-I (Import Policy). The Natural Rough Diamonds is permitted for import only, if it was accompanied with Kimberley Process Certificate, as specified by Gems and Jewellery Export Promotion Council. In order to ascertain the exact value and quantity of the goods, Sri Kamal Kant Parekh, Government approved valuer was appointed. The valuer in the presence of two independent witnesses, the importer and the CHA examined the impugned goods. Shri Parekh prepared two separate valuation reports, one for Natural Rough Emerald and one for Natural Rough Diamonds. On completion of investigation, show cause notice dated 20.05.2022 was issued to the Appellant, which was adjudicated vide the impugned order. 2. The learned counsel submitted that the appellant had filed Bill of En....
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....ods does not find support in law. He relied on the following case laws: (i) CC Calcutta Vs. South India Television P Ltd. - 2007- TIOL- 126-SC. (ii) BBM Impex Pvt. Ltd. Vs. CC (Prev). Delhi - 2020- TIOL-958- CESTAT-Del. 4. The learned counsel also submitted that there is not a single allegation that any amount over and above the invoice value as declared in respect of transaction of Emerald Stone was paid or payable. He relied the decision in the case of - CCE & ST Noida Vs. Sanjivani NF Trading P. Ltd. - 2019-365-ELT 3-SC to support his arguments. 5. The learned counsel further submitted that the Customs Valuation Rules, 2007 were not followed correctly. No reason was given by the adjudicating authority to skip Rule 7 and resort to Valuation under Rule 9 of Customs Valuation Rules. He submitted that the Rules do not allow acceptance of higher of the two alternative values, which were arbitrary and fictitious. 6. The learned counsel further contended that the valuer was not in the list of Valuers so appointed by the Commissioner of Customs (Preventive), Jaipur. He stated that the valuation being subjective, the same is bound to vary and +/-20%, which is an accepted variati....
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....nd" by way of mis-declaration amounts to smuggling. Apart from the undeclared goods, the declared goods i.e., "Natural Rough Emerald" was also found mis-declared in terms of its value. Therefore, the adjudicating authority had rightly found the impugned goods liable for confiscation under Section 111 of Customs Act, 1962 read with Section 118 and 119 of the Act, and for omission and commission of the offence, the importer rendered himself liable for penalty under Section 112(a)(i) and 114AA of the Customs Act, 1962. 10. The learned Authorised Representative submitted that it is the regular practice for every import consignment that the goods imported are to be valued by the Government approved valuer/appraiser in compliance of Section 14 of the Customs Act, 1962. Moreover, the appellant has taken a baseless ground as the declared goods viz. "Natural Rough Emerald" possesses a self declared value itself by the importer and the same has not been rejected on the prima facie of presence of undeclared goods viz. "Natural Rough Diamonds". He contended that both declared and the undeclared goods were treated as separate entities and the Govt. Approved Valuer had ascertained the value of ....
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....that mis-declaration was detected by the department as 03 small packets of undeclared goods were found along with the declared Emerald Rough stone. Therefore, the valuation of the entire consignment was done by the Govt. Approved Valuer as per procedure. Since, the imported goods were found mis-declared in respect of description, value, quantity and import policy tends them to be seized under Section 110 of the Customs Act, 1962. 14. We have heard the learned counsel for the appellant and the learned authorised representative for revenue. The issues under consideration are as follows: (i) Whether the valuation by the Government approved valuer of Natural Rough Emerald and the consequent imposition of redemption fine is correct? (ii) whether the imposition of redemption fine on Natural Rough Diamond is correct? 15. We proceed to deal with each of these issues independently. We find that the only reason given in the impugned order for rejecting the declared value was that undeclared Natural Rough Diamond were found during the examination of the import consignment. We note that no cogent reason has been given by the revenue for rejection of the transaction value. The learned cou....
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....ha Vs commissioner of Customs (Prev), Kolkata [2020 (371) ELT 763 (Tri. Kol)] has held as follows: "6. However, we find that the valuation adopted in the impugned order is arbitrary. The learner Commissioner has not recorded any reason for rejecting the declared value in respect of 148 bales. He proceeded to redetermine the valuer for the goods when the misdeclaration was only in respect of 81 bales. Commissioner proceeded to redetermine the entire quantity of goods with citing any reasons for rejecting the value of the goods. The impugned order does not refer any valuation rules and it does not make it clear if the CVR, 2007 have been followed sequentially. Under the circumstances, we find it difficult to sustain such unreason order to the extent of the value of 148 bales declared by the appellant. We find that the valuation declared by the appellant is to be accepted.......................................................". 16. Similarly, we find that the Supreme Court in the case of Commissioner of Customs, Calcutta Vs South India Television (P) Ltd., [2007-TIOL-126-SC-CUS] has held as follows; "6. We do not find any merit in this civil appeal for the following reasons. Valu....
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....e, the invoice price is not sacrosanct. However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14(1A) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Under-valuation has to be proved. If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege under-valuation, it must make detailed inquiries, collect material and also adequate evidence. When under-valuation is alleged, the Department has to prove it by evidence or i....
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....ontrary to any prohibition imposed by or under this Act or any other law for the time being in force; ........................................................................................................................... (i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof; ........................................................................................................................... (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77; (m) any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 3 [in respect thereof, or in the case of goods under trans-shipment, with the declaration for trans-shipment referred to in the proviso to sub-section (1) of section 54]; ........................................................................................................................... (o) any goods exempted, subjec....
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....h an option given to the importer to redeem the goods for re-export on payment of redemption fine of Rs. 2 lakh. It is a fact on record that 3 packets of natural rough diamond were found in the consignment which had not been declared by the appellant. It is also on record that such import of rough diamond was restricted in terms of DGFT circular number 34/2015 - 2020 dated 28.09.2020. The condition for import was that it had to be accompanied by a Kimberley process certificate. However, we note that the Director in his statement has accepted that he had not ordered the rough diamonds, and hence he could not produce the Kimberly Process Certificate. It has been also pleaded before us that the provisions of Circular No. 53/2003 Cus dtd 23.6.2003 vide para 6 allow the goods to be sent back to the exporting country in the same is not accompanied by the valid KP certificate. The relevant portion of the aforesaid notification is reproduced hereunder: "6. In case a rough diamond consignment is not accompanied by a KP Certificate, but otherwise in order, the importer in India may be given seven working days to arrange for the original KP Certificate for clearance of the said import consi....