TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 562
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.... entity. Directorate of Revenue Intelligence (DRI), Chennai gathered intelligence that various importers of LDPE reprocessed granules were resorting to undervaluation of their imports and that such clearances were effected through Chennai Seaport. On scrutiny of the import data, it appeared that the import value declared by IEC holder M/s. Shami Impex, of LDPE/ HDPE reprocessed granules /HDPE Agglomaterial were grossly undervalued. Further intelligence was gathered and one more firm M/s. Radha Enterprises importing the said goods in the same manner as of M/s. Shami Impex was noticed. Mrs. Mamta Gupta, partner of M/s. Shami Impex is the aunt of Shri S. Dhiraj Gupta, proprietor of M/s. Radha Enterprises. Her husband Shri B. Kamlesh Gupta who was an employee of M/s. Shami Impex was the paternal uncle of the said Shri S. Dhiraj Gupta. Based on the searches done and statements recorded from the appellants, Show Cause Notice (SCN) was issued for rejecting the assessable value and proposing demand of differential duty under sec. 28 of the Customs Act, 1962 along with penalties under sections 112(a) and 114AA of the CA 1962, for the BE's filed during the period from 04/2007 to 08/2009. Aft....
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....a Pvt. Ltd. Vs. Commissioner of customs, New Delhi [2004 (176) ELT 548 (Tri.-Del.)]. He further place reliance on the case of the Supreme Court judgement in the case of Commissioner Vs ITC Limited [2006 (203) E.L.T 532 (S.C.)] and Lan Esenda Ltd Vs Commissioner [2005 (192) E.LT 305 (Tri.-Mum.)]. In respect of imports covered by seven bills of entry referred to in Annexure 1, he submitted that those imports were under Indo Srilanka Free Trade agreement and the values declared for these goods were certified as correct by the Sri Lankan Ministry of Commerce. Hence in respect of these seven bills there is no basis to make any demand. The amount demanded was Rs.2,14,963/-. For Bills of Entry No. 64173 dated 17.1.2008 and No. 678146 dated 25.2.2008 the show cause notice refers to supporting evidence in terms of Rule 4 of valuation Rules. However, no such evidence has been enclosed to the notice. Thus, this demand to the extent of Rs.3,76,848/- is not tenable. He stated that there are certain glaring omissions like repetition of entries, adoption of wrong values and the citation of invoices with dates later than the shipment date. On account of all these the extra demand made comes to Rs.....
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....08 (224) ELT 583 (T-Del)], Sidharth Shankar Roy [2013 (291) ELT 244 (T-Mum)] and stated that as per Hon'ble Supreme Court judgment fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. Tribunal, Mumbai also in the case of Saccha Saudha Pedhi vs. Commissioner of Customs (Import), Mumbai reported as [2015 (328) ELT 609 (Tri-Mumbai) has held that once the witnesses admitted to under valuation and accepted actual price of imported goods mentioned in the purchase orders / messages of supplier, then the said admitted price becomes transaction value in which case, there is no need to resort to contemporaneous import. He reiterated the points given in the impugned order and prayed that in the circumstances, the appeal may be rejected and the order upheld. 4. We have carefully gone through the facts of the case and have heard the rival parties. We find that this is a case where the appellant is alleged to have imported LDPE reprocessed granules by undervaluing the same. The BE's were assessed provisionally at the time of the imports. The question is whether (a) in such a situation a notice to finalise the assessment and demand duties etc....
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....g to a just decision. Hence the appellant could have been asked to show reasonable proof of his attempting to approach the Settlement Commission within a definite timeline. This was necessary since once the case has been adjudicated, the procedure for settlement cannot be availed. Without doing the same, a conclusion by the Ld. Lower Authority that the noticees sought extension of time to file reply to SCN only to delay the adjudication proceedings, cannot be sustained as being based on presumption. 6.3 More so the statements made by co-noticees are likely to affect the outcome of the decision against the individuals and could lead to confiscation of goods along with severe penalties. In such a situation the appellants, have an opportunity to test and assess the probative value of the evidence and statements of co-noticees / others during the PH, subject to the reasoned satisfaction of the proper officer. Natural justice hence requires that these processes are not side stepped based on statutory requirements alone but are seen to be done in the spirit of procedural fairness. The appellants hence have a reason to feel aggrieved. 7. The department has stated that the facts relating....
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....omission draws attention to the importance of adhering to the provisions of Trade Agreements and ensuring that proper verification procedures are followed. Without that exercise the conclusion of revenue regarding fraud and under valuation with respect to the concerned BE's is unsound and the question remains as to why the provisional assessment could not be finalized as declared based on the certification. Moreover, in the case of the imported goods covered by Annexure II of the SCN it is admitted in the SCN that there is no direct evidence available to challenge the declared value. Such a situation also warranted that the assessments be examined and finalised under the relevant section and valuation rules first before arriving at a conclusion of fraud, suppression etc. and thereby evoking section 28 to demand the short paid duty along with punitive provisions, if at all. 7.3 Its only after final assessment that the relevant date for issue of a notice to recover duty which has not been levied or has been short levied etc. involving fraud, if any, becomes operative. By issuing a legally defective notice, the opportunity to examine the probative value of the documents including sta....
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....ers under Section 28 of the Customs Act, 1962, inter alia demanding Rs. 4,15,03,279/- along with penalty and interest. 7. The short question involved in this writ application is whether any show cause notice under Section 28 of the Customs Act, 1962 can be issued, unless there has been final assessment. *****. *****. ***** 18. The submission of the respondents, that what is relevant is the substance of the show cause notice and not its form, may be correct. It is, however, difficult to accept the argument that the show cause notice is, for all practical purposes, under Section 18 of the Customs Act, 1962. 19. As rightly argued by Counsel appearing on behalf of the petitioners, there is no provision for issuance of show cause notice for finalization of assessment. Moreover, it is patently clear that a demand in terms of Section 28(1) has been raised. The nomenclature also shows that the impugned notice is a demand- cum- show cause notice. 20. The argument that by the impugned show cause notice, the petitioners were only given an opportunity to make their submissions before final assessment, cannot be accepted, since the petitioners have also been directed to show cause why....
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....e guilt of not paying the duty or short paying the duty. The relevant Paragraph reads as under:- "2. Learned advocate for the petitioner submits that, the petitioner had imported certain materials into India. The petitioner had applied under Section 18(1) of the Customs Act, 1962. The application under Section 18(1) of the Act of 1962 has not been finally adjudicated upon under Section 18(2) of such C/40144/2019 Act. Without a final adjudication under Section 18(2) of the Act of 1962, the authorities have sought to invoke Section 28 of the Act of 1962, read with Section 124 thereof. He submits that, the authorities are entitled to invoke Section 28 of the Act of 1962, if and only if, the petitioner is guilty of not paying the levy or short- paying the same or for the reasons specified in Section 28 thereof. None of the grounds available to invoke Section 28 of the Act of 1962 exists in the facts of the present case. The levy payable by the petitioner is yet to be adjudicated upon, for the petitioner to have defaulted in payment of the same and Section 28 being invoked. *****. *****. ***** 15. The petitioner had imported what is claimed to be slack wax. DRI had initiated an in....