TaxTMI 
TaxTMI 
2023 (11) TMI 268
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....3.02.2010 by the officers of the Special Intelligence and Investigation Branch (SIIB) of the Commissionerate in presence of two independent witnesses. The goods were found to be rolls of branded Reflective Sheets of brand name "Sablite". Two types of reflective sheets of series TM 3200 AB and TM 1800 of 1219 and 5 rolls respectively were found. The value of these goods declared in the Bill of Entry was Rs. 15,41,721.53 (USD 32758.58). The examining officer doubted these values as they were too low. The goods were detained and a market survey was done on 18.02.2010 in which quotation from M/s. Surya Plastics, Paharganj, New Delhi was obtained which showed that the price of similar Reflective Sheets was Rs. 8,000 per roll (Roll size is 1.2 Mtr x 45.7 Mtrs.) and other reflective sheets were priced Rs. 36,000/- to Rs. 39,000/- per roll. The value declared in the Bill of Entry was Rs. 15,41,721.53 which works out to Rs. 1247/- per roll. Hence it was felt to be very low. 2. During investigation, it was also found that the appellant had imported the same goods through fourteen other bills of entries in the past declaring similar prices. It was felt that the goods imported under these p....
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....r. Matching the container numbers in the export and import documents also establishes that what is being referred to is the same container. If the name of the vessel and the date of sailing are also matched with the container number, there can be no manner of doubt that the declarations before the Chinese Customs by the exporter and before the Indian Customs by the importer pertain to the same consignment imported in the same container in the same vessel on the same date. 4. Summons were issued to Shri Varinder Singh Choudhary, Proprietor of the appellant who in his statement dated 15.11.2011 recorded under section 108 of the Customs Act, 1962, said that he has been the Proprietor of M/s. Décor Rubber Industries since its inception in 1986 and the firm is engaged in the activity of import of Automobiles Accessories and Reflecting Sheets for trading thereof. He also admitted that five rolls of the sheet imported were not declared in the Bill of Entry dated 9.2.2010 which was filed. He admitted that all the impugned Bills of Entry were filed by his firm and he had signed on the copies of these Bills of Entry in token of having seen the same. The goods imported under the Bil....
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.... Reflective Sheets' pertaining to four Bills of Entry No. 687904 dated 22.04.2008, 706622 dated 30.06.2008, 716536 dated 01.08.2008 and 734013 dated 27.10.2008 imported by M/s. Decor Rubber Industries during the period from 03.02.2008 to 09.02.2010 under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and redetermine the same to Rs. 1,04.78,218/- under Section 14 of the Act ibid read with rule 3(4), Rule 4 and Rule 9 of the said rules. (iii) I refrain from confiscation of the goods imported in past by M/s. Decor Rubber Industries vide Bills of Entry Nos. 765238 dated 03.02.2008, 687904 dated 22.04.2008, 706622 dated 30.06.2008, 716536 dated 01.08.2008, 734013 dated 27.10.2008, 775599 dated 19.03.2009, 783248 dated 17.04.2009, 788781 dated 05.05.2009, 800863 dated 15.06.2009, 815100 dated 30.07.2009, 828110 dated 09.09.2009, 842429 dated 24.10.2009, 855194 dated 08.12.2009 and, 865928 dated 13.01.2010, for the reasons stated above, I, however, order confiscation of goods imported vide four Bills of Entry No. 765238 dated 03.02.2008, 687904 dated 22.04.2008, 706622 dated 30.06.2008, 716536 dated 01.08.2008, 734013 dated 27.10.2008 ....
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....ities for the goods cannot be relied as none of these bear any signature or stamp. Rejection of transaction value on the basis of such inadmissible documents is liable to be set aside. Also there is no proper market enquiry. The value has been enhanced and re-assessed based on a single quotation which mentions the retail price of the goods and not the import value. Hence, this report also cannot be the basis for rejecting the transaction value as mentioned in the impugned Bills of Entry. Ld. Counsel has relied upon following decisions to support the above submissions has prayed for setting aside the order under challenge and for the appeal to be allowed. 1. Commissioner of Customs, Calcutta vs. South India Television (P) Ltd. reported in 2007 (214) E.L.T. 3 (S.C.) 2. Eicher Tractors Ltd. vs. Commissioner of Customs, Mumbai reported in 2000 (122) ELT 321. 3. Golden Agro Corporation vs. Commissioner of Customs, Jaipur-I reported in 2017 (354) ELT 655 (Tri.-Del.) 10. Rebutting these submissions, Learned Authorised Representative for the Revenue submitted that the appellant declared the goods as "Reflective Sheets" without specifying any brand, but on exam....
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.... Destination country, Destination country code, Marks and Nos., Container No., Number and kind of packages, description of goods, Country of origin, Country code, Quantity, Unit of quantity, FOB Value, Declarations, Signatory's name, Signature, designation, date, etc. All these details, except a few particulars that too in few of these documents, tally with the invoices. Thus, prima facie, the documents appear to be genuine. The admissibility of documents is covered under Section 139 of Customs Act, 1962 which is reproduced below for better appreciation, reads as follows:- "Section 139. Presumption as to documents in certain cases. - Where any document - (i) is produced by any person or has been seized from the custody or control of any person, in either case under this Act or under any other law, or (ii) has been received from any place outside India in the course of investigation of any offense alleged to have been committed by any person under this Act, and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall (a) presume, unless the contrary is p....
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....cer does not sign and stamp the Bills of Entry. Likewise, most of the documents such as invoice, packing list, etc. submitted along with the Bills of Entry are also sent and received through electronic means and not under the signature and stamp. At any rate, the documents filed with the Chinese authorities are as per their procedures and practices and if the declarations are to be filed online by the exporter with the Chinese authorities, they will be so filed and they cannot be separately stamped and signed and issued to satisfy the appellant. 15. If the appellant wanted to dispute the authenticity of the declarations, he could have procured and produced the correct declarations as the appellant was in a better position to procure those documents from his supplier/exporter. The appellant failed to produce any such declarations. On the other hand, in order to obtain the declarations made before the Chinese authorities, the investigating officer had requested the Consulate General of India through letter No. 62/2010 dated 29.11.2010 and subsequent reminders dated 08.06.2010 and 02/02/2011 to get the possible documents for facilitating the overseas inquiry in the import of Reflec....
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....36.71 9 % of Under Valuation 75.10 75.10 74.90 78.02 17. This chart was provided to the appellant on 15.11.2011. Copies of declarations received from Chinese Customs were sent to the appellant vide letter dated 23.11.2012. Nothing has been produced by appellant to Show that these documents were incorrect or that the declarations made before the Chinese Authorities were different. 18. The mode of procuring the documents during investigation and the absence of any other Export Declarations with the appellants is therefore sufficient for us to hold that the appellant has failed to rebut the presumption of correctness attached to these documents in terms of section 139 of the Customs Act. Appellant has not produced any other cogent document to show that price as was declared to the Chinese Customs was different from the price which is mentioned in the export declaration obtained by the department from China through Consulate General of India The Export Declarations as received from China are, therefore, admissible in the evidence. 19. In view of above discussion, there appears no doubt about the authenticity of documents as these were obtained by DRI through ....
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....he Indian Customs in order to evade the legitimate duty of customs and the importer succeeded in his intention many times till the documents from overseas came to the notice of the Department. These overseas documents when compared with the details in the import documents it get clearly established that the importer has mis-declared the value of the goods at the time of import by forging the invoice. 23. We also observe that the appellant had admitted the presence of five different rolls of Reflecting Sheets of different series TM 18 100 to have been sent by the exporter as samples, but still had not shown the same in the Bills of entry. This admission corroborates the Department's stand that the appellant despite having knowledge of the content of his consignment and the correct/export value of the goods in the said consignment, has failed to declare the same. 24. Hence we don't find any reason to differ from the findings in the order under challenge with respect to the said quotation. We hold that the quotation of M/s. Surya Plastics has rightly been relied upon for the purpose of market inquiry. The decisions referred by the appellant are therefore held not applicable to t....
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....transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section: Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or exped....
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....lue in respect of goods where price is not the sole consideration for the sale; e) the manner of determination of value in respect of goods in any other case; and f) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section. 31. The Customs Valuation (Determination of Value of imported goods) Rules, 2007 [Rules] were framed as per the second proviso to sub-section 1 of section 14. It has 13 Rules in all of which Rules 1 and 2 are Preliminary rules. Rule 3 states that subject to Rule 12, the value shall be the transaction value adjusted according to Rule 10. Rule 10 provides for certain costs to be included in the transaction value. Rule 12 provides for the proper officer to reject the transaction value if he has reason to doubt its truth and accuracy. Thus, unless the proper officer rejects the transaction value under Rule 12, the valuation has to be based on transaction value as per Rule 3 with some additions, if necessary, as per Rule 10. 32. If the transaction value is ....
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....ve method, then value must be determined through computation (Rule 8) g) If the importer so chooses, computational method may be adopted without examining the deductive method first (Rule 6). h) If the transaction value is rejected and there is no value of identical goods or similar goods and if it is also not possible to determine the value through deductive method or computational method, then value may be determined through the residual method by the officer following the above principles (Rule 9). 34. The next question which arises is when can the proper officer reject the transaction value. Rule 12 reads as follows: 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 ....
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....ary). The grounds on which the proper officer may raise doubts about the truth and accuracy of the transaction value have been illustrated in explanation 1 (iii) to Rule 12. The list is inclusive and not exhaustive. 36. While examining the issue No. 1 we have already held that the export declarations are admissible into evidence. Similarly, while examining issue No. 2, we held that the quotation obtained during market enquiry is admissible as evidence. Of the fifteen Bills of Entry, the Commissioner only re-determined the value of the goods in respect of five and did not re-determine the value in respect of the remaining ten Bills of Entry. These five Bills of Entry included the Bill of Entry dated 9.2.2010 and four past Bills of Entry in respect of which the transaction values could be obtained from the Chinese authorities through Consulate General of India from the declarations made by the exporter to Chinese Customs. 37. As far as the Bill of Entry dated 9.2.2010 is concerned, the Commissioner rejected the transaction value, firstly because, while the invoice and the Bill of Entry declared only 1219 rolls of TM 3200, on examination, it was found that there were five additi....
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....s is available and therefore the issue has attained finality to this extent. Thus, the Commissioner's order was very fair and balanced. 40. In the impugned order, the Commissioner confiscated goods imported under the Bill of Entry dated 9.2.2010 which were seized and provisionally released on execution of a bond under section 111(m) but she refrained from confiscating the goods imported under the past Bills of Entry. Since the undisputed fact is that the goods imported in the Bill of Entry were not fully declared and five additional rolls were imported but not declared and also since we found that the value declared in this Bill of Entry was correctly rejected under Rules 12 and re-determined under Rule 4, we find that there was mis-declaration of the goods both in terms of value and quantity and the confiscation under section 111(m) must be upheld. The redemption fine of Rs. 5,00,000/- imposed under section 125 on the goods valued at Rs.64, 86,108/- is very fair and reasonable and calls for no interference. 41. In the impugned order, the Commissioner did not impose any penalty on the owner of the appellant. She also did not impose any penalty on the appellant under section 1....