TaxTMI 
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2024 (9) TMI 254
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.... Therefore, both those consignments were also subjected to 100% examination on 24-03- 2023 by shed officers in the presence of DRI officers and the representative of a Customs empanelled Chartered Engineer M/s ELBI Consultancy (India) Pvt. Ltd. On physical examinations, all the goods imported in both the consignments appeared to be old and used. 2.2. M/s ELBI Consultancy (India) Pvt. Ltd. vide Inspection reports dated 27-02-2023 and 27-03- 2023 gave their opinion on the nature of the imported goods. From the results of physical visual examination and the Chartered Engineer's report, the imported goods appeared to be old, used and refurbished. As per Para 2.31 of the Foreign Trade Policy 2015-2020, import of "Second Hand Goods other than capital goods is restricted except under authorization. The appellant has not submitted any authorization for import of the said second hand goods and hence the officers were of the view that the goods were imported in violation of the Foreign Trade Policy 2015-2020. Accordingly, the goods imported were placed under seizure. 2.3. The appellant submitted a letter dated: 26-05- 2023 wherein they contended that the imported LCD panels are not old....
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....clared by them and redetermination of the value, the appellant submits that without any corroborative evidence in support of the value determined, the Chartered Engineer gave the price for 17" Panels @ Rs. 2,000/- for 19" Panels @ Rs. 2,200/- and 20" Panels @ Rs. 2,400/- as against the declared value on the invoice @ USD 5, USD 6 and USD 7 respectively. Prior to adjudication of the case, it was submitted before the adjudicating authority that similar items are being sold by other importers at a much lesser price in the local market. But, in the impugned order, the adjudicating authority held that, the GST invoice evidence submitted for local sale of such goods @ Rs. 350/pc or Rs. 410/pc was before imposition of 18% IGST, hence the same is not comparable. The appellant submits that even if 18% IGST is added to the aforesaid price of TV panels, in no way it is arriving nearer to the value of the panels ascertained by the Chartered Engineer @ Rs. 2000 to Rs. 2200. Besides, complete TVs of 17" are being sold in lots of 525/60 pcs in the market @ Rs.1200-1300. 4.2. The appellant submits that the allegation of mis-declaration has been made since the Country of origin was found different....
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....t. No evidence has been brought on record to establish that the transaction value between the parties was influenced by any consideration other than commercial, that too when the model of TV panels in question had become obsolete. These facts support the appellant's contention that their purchase price was a fully commercial price. 4.6. The appellant submits that it is well settled in the case of Eicher Tractors Ltd. v. CC, Mumbai reported in 2000 (122) E.L.T. 321 (S.C.) that unless warranted by the exceptions provided in Rule 4 of Customs Valuation Rules, transaction value should be accepted as assessable value as held in the case of Spice Communication Ltd Vs Commissioner of Customs, New Delhi, reported in 2004(170) E.L.T. 249 (Tri-Del.). Similar view was held and rejection of transaction value was adversely viewed by the Hon'ble Supreme Court in the case of M/S. Century Metal Recycling [2019(367) E.L.T. 3 (S.C.)] and M/S. Sanjivani Non-ferrous Trading Pvt Ltd [2019(365) E.L.T. 3 (S.C.)]. Besides in the case of Punj Sons Pvt. Ltd Vs Collector of Customs, Bombay reported in 1996 (87) E.L.T. 559 (Tribunal), it was held that, broadly speaking, depreciation means diminished value of....
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....uge demurrage accrued. After adjudication of the case, no option to clear the goods on redemption has been given. This tantamount to absolute confiscation since option to redeem is only for re-export purpose. In the case of Mafatlal Industries Ltd. v. U.O.I. - 1997 (89) E.L.T. 247 (S.C.) it has been held that absolute confiscation should be an exception rather than a rule. Similar second hand items are an item of regular import and are being cleared on adjudication because Section 125 of CA'62, empowers the adjudicating authority to allow redemption of restricted and prohibited goods unless the same items are not banned or prohibited u/s 11 of CA'62. Hence as per the request of the appellant, goods can be allowed clearance and if any second hand goods are found on such examination, adjudication process may be resorted and goods released after redemption of the same. 4.11. In view of the above submissions, the appellant prayed for setting aside the value enhancement, confiscation, imposition of redemption fine and penalties. 5. The Ld. A.R. submits that the Chartered Engineer's Report categorically states that the goods were old and used. As per Para 2.31 of the Foreign Trade ....
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....g authority has not given any finding on the claim made by the appellant that the goods imported are new goods, on the basis of the letter issued by the supplier of the goods. He came to the conclusion that the goods are old and used on the basis of the report given by the Chartered Engineer. For the sake of ready reference the report given by the chartered engineer is furnished below: 6.3. On perusal of the report issued by the Chartered Engineer, we observe that the report is not in consonance with the physical availability of the goods in the consignment. In the examination report, the Chartered Engineer reported that, the date of manufacture is not available on the goods, ignoring the fact that the 19" LCD Panels of Lenovo Brands of 2876 pcs was manufactured on 01.08.2021, which was embossed on it. We also observe that the Chartered Engineer's report is not conclusive as he suggested for further laboratory test to ascertain its functionality, residual life etc. Accordingly, we hold that the adjudicating authority could not have come to the conclusion that the impugned goods are old and used only on the basis of this Chartered Engineer's report, which is inconclusive on the....
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....f stock lot, a slight variation in value as compared to the new item of similar goods is permissible. 7.1. We find that the Chartered Engineer gave the price for 17" Panels @ Rs. 2,000/- for 19" Panels @ Rs. 2,200/- and 20" Panels @ Rs. 2,400/- as against the declared value on the invoice @ USD 5, USD 6 and USD 7 respectively. We observe that prior to adjudication, the appellant submitted the value of similar goods available in the market to the adjudicating authority. We observe that similar items were being sold in the market at a much lesser price. But, in the impugned order, the adjudicating authority held that, the GST invoice evidence submitted for local sale of such goods @ Rs. 350/pc or Rs. 410/pc was before imposition of 18% IGST, hence the same is not comparable. In this regard, we observe that even if 18% IGST is added to the aforesaid price of TV panels, in no way it comes closer to the value of @ Rs. 2000 to Rs. 2200 as determined by the adjudicating authority. Besides, the appellant submitted that complete TVs of 17" are being sold in lots of 525/60 pcs in the market @ Rs.1200-1300. We cannot ignore the comparable price of similar goods available in the market while ....