TaxTMI 
TaxTMI 
2024 (3) TMI 568
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....s. 2. The appellant imported various types of jackets and filed a Bill of Entry dated July 22, 2019 at Customs, ICD Patparganj, Delhi in which the value of the goods was declared as Rs. 1,01,78,142/-. The goods were purchased by the appellant from Xiamen, China, but they were supplied to the appellant by an overseas supplier of the appellant based in Hongkong. During investigation, it was observed that the goods were of better quality and the assessable value of the goods was higher than that declared by the appellant on comparison of the value with that of similar goods from the e-commerce sites. On being shown the value of the goods from the sites, the appellant in writing not only waived the issue of show cause notice and personal hearing, but also submitted a statement dated 23.08.2019 accepting the said value. This fact has been noticed by the Joint Commissioner in the order and the relevant portion of the order is reproduced below: "Waiver of show cause notice & personal hearing" 1, Sanjay Kumar Bhatia, Aged 45 years, S/o Shri Nand Kishore Bhatia, R/o 24/2B, Tilak Nagar, New Delhi-1100018, Prop. of M/s Spartan International office at 17/52, 1st Floor, Til....
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....om trading firm based on Hongkong However, he admitted that the declared value of the imported goods were lower as compared to their actual value. He further accepted that actual assessable value of each type of imported goods are as under:- S. No. Description of the Items Declared Price Per Piece (UCD) Re-assessed unit price per Pcs. (USD) 1. Mens Polyester Wind Jacket 4 13 2. Ladies Cotton Woven wind Jacket 3.75 12 3. Mens PU Jacket 4.5 9 4. Mens Polyester Knitted Jacket 3.5 7.5 5. Kids Jacket 2.5 4 20.1 xxxxxxxxx xxxxxxxxx xxxxxxxxx 21. I find that on comparison of the contemporary data, the overall value of the goods is very low and hence the declared value does not appear to be the true transaction value of such goods under Rule 3 of the Customs Valuation Rules, 2007. The same is liable to be rejected under Rule 12 and re-determined under Rule 5 of the CVR, 2007. Therefore, the goods were under-valued, the goods are liable for confiscation under Section 111 (m) of the Customs Act, 1962 and penalty is imposable on the importer under Section 112 (ii) of the Customs Act, 1962. ....
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....t as stated in para 18 of the impugned order, he should not have waived the show cause notice and personal hearing. The act of waiver of show cause notice and personal hearing clearly indicate that the Appellant agreed with valuation done by the department." (emphasis supplied) 5. Shri P.C. Patnaik, learned counsel assisted by Shri Ramesh Kumar Sahu, Advocate, appearing for the appellant submitted that the Joint Commissioner could not have re-determined the value solely on the basis of e-commerce site data. Learned counsel pointed out that Bill of Entry of contemporaneous import was not provided and that the statement was given by the appellant under duress. Learned counsel pointed out that there is a detailed procedure provided under the 2007 Valuation Rules for rejecting the declared value and re-determining it, but it was not resorted to by the Adjudicating Authority. Learned counsel also stated that duty on enhanced value was paid under duress. 6. Shri M.K. Shukla, learned authorized representative appearing for the department has, however, placed reliance upon the decision of the Tribunal in Commissioner of Customs, ICD Patparganj, Delhi vs. M/s Hanuman Prasad a....
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.... 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 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. 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 s....
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....46 or section 50 and the self-assessment of goods referred to in subsection (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 subsection (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 and 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 subsection (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the im....
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.... the proper officer. The appellant also specifically stated that it did not want any show cause notice to be issued or personal hearing to be provided or 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 in writing. 16. 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 i....
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....d. (h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 16. Proper officer can therefore reject the declared transactional value based on certain reasons to doubt the truth or accuracy of the declared value in which event the proper 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." 19. Despite the specific statement made by the appellant that it did not require any show cause notice to be issued or personal hearing being granted and that the value indicated by the Joint Commissioner was acceptable to it, it was sought to be contended by the learned counsel for the app....
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....necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the 2007 Valuation Rules. This is for the reason that it is only when the value of the imported goods cannot be determined under rule 3(1) for the reason that the declared value has been rejected under sub rule (2), that the value of the imported goods is required to be determined by proceeding sequentially through rules 4 to 9. As noticed above, the appellant had accepted the enhanced value. There was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the 2007 Valuation Rules sequentially. 22. The aforesaid views find support from the decision of the Tribunal in Hanuman Prasad & Sons 2020 (12) TMI 1092-CESTAT, New Delhi. 23. In this connection, it would also be useful to refer to a decision of the 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 vs. Commissioner of Customs, Lucknow 2001 (128) E.L.T. ....
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....sented 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 stopped 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 purpose of clearance of the goods and that they res....
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....sary for the revenue to establish the valuation as the consented value, in effect, becomes the declared transaction value requiring no further investigation; (ii) When an importer accepts the loaded value of the goods without any protest or objection, the importer cannot be permitted to deny its correctness; and (iii) The burden of the Department to establish the declared value to be in correct is discharged if the enhanced value is voluntarily accepted. 28. What, therefore, follows is that once the appellant had accepted the enhanced value, it was not necessary for the department to determine the valuation as the consented value, in effect, became the declared transaction value. Further, once the appellant accepted the enhanced value it would not be open to the appellant to now contend that the procedure as contemplated under rule 12 of the 2007 Valuation Rules should have been complied with. 29. Learned counsel for the appellant submitted that the duty was paid by the appellant under protest and for this purpose the learned counsel pointed out that the customs duty was paid on the same date the letter was written by the appellant. 30. It is not possible....