TaxTMI 
TaxTMI 
2024 (6) TMI 58
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....importers in India. Some of the importers appear to have declared higher values while some of the other importers were alleged to have maintained parallel invoices and, that appears to be the reason for search in the case of the appellant before us. The appellant was thus alleged to have indulged in the undervaluation of imports in question. 3. During the relevant period, the appellant had imported 94 consignments of Clear Drawn Sheet Glass/Reflective Sheet Glass of various sizes between May 2006 to June 2008; and the declared price was as under : - (i) for both 1.8 mm and 1.69 mm clear drawn sheet glass was US$0.57/ Sq.Mtr.; (ii) Cleared 4 mm reflective glass sheet of different colours at US$1.52 to 2.92/Sq.Mtr.; 3.1 The Directorate of Revenue Intelligence (DRI) appears to have inferred based on the alleged contemporaneous imports (from NIDB data): - (i) Clear Drawn Sheet Glass sizes 1.69 mm and 1.8 mm were declared @ $0.57/SQM during the period from May 2006 to June 2008, whereas, the actual prices were ranging between $0.92 to $1.45 per SQM and other importers were also clearing at a higher value than that declared by the appellants; and (ii) In respect of 5 mm Reflect....
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.... the appellant was incorrect. He would also contend that in most of the cases of imports by other importers which has been relied upon by the revenue, copies of relied upon documents like bills of entry were not provided to the appellants. In this regard, he has relied on the decision of Hon'ble Supreme Court, in the case of; (1) Commissioner of Customs Vs.M/s. M.M.K. Jewellers [2008 (25) ELT 3 (SC)] where in it is held that, "in view of the clear legal position crystallized by a series of judgements that in case where the assesses are not guilty of suppression of facts, collusion or wilful misstatement of facts, therefore, the extended period of limitation cannot be invoked under proviso to Section 28(1) of the Customs Act, 1962 in the instant appeal and the other connected appeals. Consequently, this appeal and other connected appeals filed by the appellant have to be dismissed being time barred". (2) In M/s.Uniworth Textiles Vs. Commissioner [2013 (288) ELT 161 (SC)] it has been held that, "in view of the settled position of law and in view of the fact that the Department has not brought on any iota of evidence of the involvement of the importer/appellants in the fraudulent ....
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....of 181 items, the learned Original Authority had not seen the NIDB data or Bills of Entry or Invoices for 103 items. For 67 items, Bills of Entry were made available but the relevant invoices were not made available. For 11 items invoices were made available but Bills of Entry were not made available. Thus, effectively no relied upon document was supplied to the appellant. (v) Unless copies of the Bills of Entry of the so-called comparables were provided, it could not be said that the declarations made by the appellants under Section 46 of the Customs Act, 1962 in the Bills of Entry were wrong, to allege mis-declaration, etc. (vi) The investigation was based suspicion that the import by other importers of similar goods was at higher prices the data of which should be available with the revenue and therefore, there was no justification for non-supply of relied upon documents on the flimsy ground of non-appearance of the appellants or their representative. (vii) NIDB data is retrieved from the EDI system maintained by the Department and when the NIDB data is used, it is required that copies of relevant Bills of Entry, invoices, etc., are provided to the affected party failing w....
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....aport), Chennai [2015 (330) ELT 799 (Tri.-Chennai]; iii) a) M/s.Agarwal Foundries (P) Ltd., Vs. Commissioner of Customs [2020 (371) ELT 859 (Tri. Hyd.)]; b) Commissioner Vs. M/s.Agarwal Foundries (P) Ltd., [2020 (371) ELT A295 (SC)]; iv) Final Order No.40718/2023 dated 24.08.2023 passed by the CESTAT, M/s.Vikram Trading Company Vs. Commissioner of Customs, Chennai; v) a) M/s. Global Industries Vs. Commissioner of Customs, Cochin [2011 (272) ELT 724 (Tri.-Bombay)]; b) Commissioner of Customs, Cochin Vs. M/s.Global Industries [2023 (9) Centax 74 (SC)]/ [2023 (386) ELT 32 (SC)]; vi) a) Commissioner of Customs, Nhavasheva-III Vs. M/s.Granite India [2023 (6) Centax 10 (Tri.Bombay)]; and b) Commissioner of Customs, Nhavasheva -III Vs. M/s.Granite India [2023 (6) Centax 13 (SC)]. 12. Per contra, Shri M.Ambe, Ld. Deputy Commissioner has supported the findings in the impugned order. He also drew our attention to paragraphs 8, 9, & 10 of the impugned order, wherein, specific findings on the undervaluation have been recorded by the Adjudicating Authority. 13. We have considered the rival contentions and we have also carefully perused the documents placed on record. We find tha....
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....Commissioner of Customs, Mumbai Vs. M.M.K.Jewellers - reported in 2008 (25) ELT 3(SC) - is apt, wherein it has been held as under: " 46. In view of the clear legal position crystalized by a series of judgments that in case where the assesses are not guilty of suppression of facts, collusion or willful misstatement of facts, therefore, the extended period of limitation cannot be invoked under proviso to Section 28(1) of the Customs Act, 1962 in the instant appeal and the other connected appeals. Consequently, this appeal and connected appeals filed by the appellant have to be dismissed being time barred..." 17. In addition to the above, we find from the series of correspondences addressed by the appellant to the office of the original authority that there have been many requests for supply of relied upon documents for effective rebuttal, in tune with the principles of natural justice. However, as urged by the ld. Advocate, we agree that there the relied upon documents have not at all been given to the appellant for effective rebuttal. It appears that most of the documents furnished to the appellant were incomplete. In this regard, we find that the Hon'ble Bombay High Court has in....
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....as also been observed by the original authority that the investigation itself was based on NIDB records and the outcome of investigation in respect of similar imports wherein it has been observed that during investigation of import of glass sheets by some of the importance, DRI had found two sets of invoices, one showing actual value while the fabricated invoice showing lesser value in respect of some imports, but no mention about the appellant's imports; with regard to 6 out of the total 94 bills of entry, except one instance wherein the investigation appear to have found that Rajita herbal Private Ltd. New Delhi had imported identical goods from same supplier showing higher value. But apparently nothing is brought on record as to how the goods were identical and what was the value admitted by the supplier. It thus boils down to the fact that whether the transaction value has been rejected as per the law. Other than NIDB data, no other evidence has been let-in by the revenue; it is thus required to be established that such data which is like a stock- document in the armory could be held to be sacrosanct and is well accepted by higher judicial fora. 19. Further, determination of t....
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....t of imported goods. There are no rules governing the valuation of export goods. That must be done based on Section 14 itself. In the present case, the Department has charged the respondent- importer alleging mis-declaration regarding the price. There is no allegation of mis-declaration in the context of the description of the goods. In the present case, the allegation is of under-invoicing. The charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word "value" is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14(1). The value to be declared in the Bill of Entry is the value referred to above and not merely the invoice price. On a plain reading of Section 14(1) and Section 14(1A), it envisages that the value of any goods chargeable to ad valorem duty has to be deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). It is made clear th....
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.... has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion..." [emphasis added by us in bold] 21. The following emerge from the above landmark decision of ....