TaxTMI 
TaxTMI 
2025 (3) TMI 343
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.... Notification No.49/2004-09, with the effect from 20.02.2007 and by heavily under invoicing, a detailed investigation was carried on by the Special Investigation and Intelligence Branch (SIIB) of the Cochin Custom House. The appellant had cleared 14 consignments from 24.11.2005 to 12.02.2007 and the 15th consignment was cleared provisionally pending investigation. The investigations revealed that 11 out of 15 consignments imported by the appellant, the description of the goods and the value was mis-declared, accordingly, show-cause notice-cum-demand notice under Section 124 read with Section 28(1) was issued rejecting the declared value and for redetermination of value, the goods were held to be liable for confiscation and accordingly, proposal for confiscation and penalty was invoked. The Commissioner in the impugned order takes note of the fact that the original show-cause notice dated 21.04.2011 was issued demanding duty on 29.09.2011 a corrigendum to the show-cause notice was issued. It was held that since duty was already demanded vide the original show-cause notice, the additional quantification of demand by issuing a corrigendum did not in any way make a difference since the....
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....d 26.03.2007. With respect to the remaining 14 Bills of Entry, the Commissioner has confirmed demand of Rs.1,62,53,465/- with interest thereon and imposed equivalent penalty. B. The investigation commenced with Bill of Entry No.196600 dated 26.03.2007, where the declared value per MT was 230 USD. (Total USD 2047460). Based on the investigation carried out and the documents recovered, the statements recorded etc. with respect to this Bill of Entry, fax dated 26.03.2007/30.03.2007 from the supplier CV Mulia Karya, the department alleged that the correct value for the goods imported under this Bill of Entry is 89900 USD. However, there was no indication in the fax message as to whom this amount was sent to and as to how the payment was made. This Bill of Entry was assessed provisionally as per the letter dated 01.06.2007 based on NIDB value of USD 323.00 per MT and released on execution of Bank Guarantee and surety bond. C. With regard to 14 Bills of Entry, it is submitted that the declared value was USD 230.00 per MT and was enhanced to 250 USD per MT. Inspite of the value having been enhanced initially at the time of clearance and none of these Bills of Entry were assessed pro....
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....n cannot be alleged. Relied upon the following decisions: • Ashoka Wire Industries. Vs. Commissioner of Central Excise, Delhi-I 2018 (363) E.L.T. 254 (Tri.-Del.) • Synergy Steels Ltd. Vs. Commissioner of Central Excise, Alwar. 2020 (372) E.L.T. 129 (Tri.-Del.) • Commissioner V. Synergy Steel Ltd. 2020 (372) E.L.T. A26 (S.C.) E. Moreover Mr. Mohammad Fayaz, Superintendent of Customs in his statement dated 20.12.2011 confirmed that the contemporaneous price of similar goods imported at that time was 300-350 USD. The goods imported vide Bill of Entry No.196960 the department had taken the NIDB value of 323 per MT for provisional release chose to ignore the same and rely upon unsubstantiated documents to enhance the value and demand higher customs duty. Relied on the following decisions: • Commr. Of Cus. (Preventive), Amritsar Vs. Tanmay International. 20018 (363) E.L.T. 181 (Tri.-Chan.) • Commissioner of Customs-I Vs. Aasu Exim Pvt. Ltd. 2018 (11) GSTL 226 (S.C.) • Apurva Corporation Vs.Collector of Customs, Calcutta. 2000 (123) ELT 715 (Tribunal) F. With respect to the 4 Bills of Entry, there is no in....
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....l). H. With regard to 14 Bills of Entry, the values were enhanced at the time of clearance from 230 per MT to 250 USD per MT and the assessments were final, thus, the department had acknowledged the value declared and the alleged undervaluation. Therefore, the demand with respect to the 14 Bills of Entry are barred by limitation, as the allegation of suppression is not established. Only with respect to Bill of Entry No.196600, which was under provisional assessment, the demand, if sustainable on merits, is within limitation. Hence, penalties are also not justified. Relied upon the following decisions: • Ajanta Manufacturing Ltd. Vs. Commissioner of Customs, Kandla. (Para 5 and 6) 2016 (333) E.L.T. 463 (Tri. - Ahmd.) • Sah Petroleums Ltd. Vs. Commr. Of Cus. (Import) JNCH, Nhava Sheva (Para 23) 2017 (358) E.L.T. 483 (Tri. - Mumbai) I. It is further submitted that originally in the show-cause notice, there was no claim for interest with respect to the 14 Bills of Entry and only in the corrigendum to the show-cause notice dated 29.09.2011 for the first-time, demand with interest was made for the 14 Bills of Entry. This was done much after the Appellant h....
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....Price Declared ( INR)as per ICEGATE Price Declared ( INR) Sale Procceds( USD) made AS PER Seized Doc. Sale Procce ds(INR) made AS PER Seized Doc Dt. Of Pmt. Dt. of OOC 1* 169696 24-Nov-05 230.00 17.202 17.00 0.014 0.618 3910.00 45.7 196638 178687.00 557000 2-Dec-05 02-Dec-05 0.000 2* 176606 12-Apr-06 230.00 17.959 17.55 0.013 0.591 4035.35 45.11 200926 182034.64 46454.00 PHYSICAL NA 3* 176607 12-Apr-06 230.00 35.918 35.09 0.007 0.296 8070.70 45.11 401852 364069.28 13-Apr-06 13-Apr-06 0.000 4* 177380 26-Apr-06 230.00 17.959 17.55 0.013 0.591 4035.35 45.05 200926 181792.52 54050.00 27-Apr-06 27-Apr-06 5* 177653 3-May-06 230.00 35.....
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..... BoE Date Unit Price(USD /MT)- Ref.Para Qty Imported ( MT)-NET Conversion rate@ IUSD=Rs. Price Declared (INR) as per ICEGATE Price Rs. per Kg 1* 169696 24-Nov-05 230.00 45.7 196638 10.51 2* 176606 12-Apr-06 230.00 45. I 200926 10.38 3* 176607 12-Apr-06 230.00 45.11 401852 10.38 4* 177380 26-Apr-06 230.00 45.05 200926 10.36 5* 177653 3-May-06 230.00 44.82 399442 10.31 6* 178528 230.00 45.28 406332 10.41 178567 18-May-06 230.00 45.28 203166 10.41 8* 179694 8-Jun-06 230.00 45.93 611071 10.56 9* 173571 7-Feb-06 230.00 44.17 192948 10.16 182003 17-Jul-06 230.00 46.66 414849 10.73 186012 19-sep-06 230.00 46.02 636693 10.58 194171 12-Feb-07 230.00 44.01 393047 10.12 13 196600 26-Mar-07 230.00 89.02 43.16 929538 9.93 14 19318....
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....tice is date of knowledge and in the instant case, the due date to issue show-cause needs to be reckoned from the date of cause of action i.e. Mahazar dated 30.03.2007. Relied on the decision in the case of Shiv Shakti Enterprises vs Collector Of Customs: 1991(52) ELT439(TRI-DEL). 5. Heard both sides. At the outset let us look into the preliminary objection raised by the Revenue on the Port Restriction as per the DGFT Notification. The Commissioner in the impugned order has observed as follows "All the five containers in the said bill of lading were loaded on board the vessel envy MSC Carole VOY Y 709A only on 02. 03. 2007. Thus, the noticee had manipulated the date of loading in the bill of lading to import the consignment in violation of the DGFT Notification No. 49 (RE -2006) 2004-2009 dated 20.02.2007 restricting the import of betel nuts only through Mangalore Port with effect from 20.02.2007. However, I find that this violation is not taken as a charge in the show-cause notice as the Hon'ble High Court of Kerala has set aside the said DGFT Notification." In view of the above, the preliminary objection raised by the Revenue is rejected. 5.1 The primary objection raised by....
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....tion raised by the appellant is rejected. 5.2 Now coming to the merits of the case, we find that the demand is based on undervaluation of the betel nuts imported by the appellant. The demand on one Bill of Entry No.196600 dated 26.03.2007 which was a live Bill of Entry at that point of time, it was assessed provisionally and later on based on documents recovered from the premises of the importer, the same was finalized by enhancing the value and demanding differential duty. The betel nuts imported by the above Bill of Entry was declared as 'betel nut second quality ungarbled' but on examination, it was found that it consisted of various varieties of betel nuts and the value declared was for only one variety of betel nut which was applied to all the varieties of betel nuts. This clearly proves misdeclaration of the description of the products followed by misdeclaration of value also. Hence, rejection of transaction value by the authorities is upheld. 5.3 The Bill of Entry 196600 dated 26.03.2007 was filed for clearance of 89.02 MT (5X 20= 1100 bags) of betel nuts declared as 'betel nut second quality ungarbled' and the Invoice No.03/MK/CI/II/2007 dated 28.02.2007 of M/s. ....
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....nt varieties of betel nuts of various quantities which tallied with the packing list filed by the appellant with regard to quantities and the fax message reproduced below. These facts that were part of the Mahazar, not disputed by the appellant. Since there is a clear misdeclaration of the products, the transaction value has to be necessarily rejected. 5.5 The copy of fax dated 13.06.2006 is reproduced below: When compared the fax copy with the packing list, it is seen that the container numbers and number of bags in each container tallies. While the packing list mentioned only one variety of betel nut but the fax clearly shows different varieties of betel nut, which is also confirmed by the examination report and admitted by the appellant. The total price for all these varieties of betel nuts quoted as per this fax message price is USD 89,900 and this fax is on the letter head of the supplier. In view of the above, the entries in the fax message cannot be ignored. The appellant in his statement dated 26.03.2007 and 12.04.2007 admitted to the 5 containers that had different varieties of betel nuts and to the value as per the fax message. Though the statements were retracted a....
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....606 and 176607 dated 12.04.2006, 17738 dated 26.04.2006, 177653 dated 03.05.2006, 178528 and 178567 dated 18.05.2006, the Commissioner has relied upon the entries made in the diary recovered from the appellant's premises to enhance the value and relies on fax message dated 13.06.2006 recovered from the appellant's premises to compare the container number, seal number, description of the products, weight, number of bags etc. Admittedly, the contents of the said fax message were for different varieties and the total value of the goods was for these varieties of betel nuts. The Commissioner also observes that the appellant had made payment of the declared invoice value through the banking channels and the differential amount between the actual value and declared value was sent through his business partners. However, the fact remains that the goods mentioned in the above Bills of Entry were declared as 'betel nuts second quality ungarbled' and the Revenue after examination of the goods enhanced the value from 230 per MT to 250 per MT and assessed to duty and cleared the same on payment of duty, thus finally assessing the bills of entry. The copies of the Bills of Entry placed on record....
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....111) I-L 9.536 QUEMA 24 gdale (1) 2.20 8 447. 1.5 14000 2380 10400 4221 4470 2030 - 22-030 93 CARU. 77-4677622 CT- Witte Boop Camlity 220 x 8518) (5) Fore WHILE WITH HOUR × 88 MSCH. 2169 396 22 GF LALY. BOILED. 96 By x GEF We vom 93 Do IP 212 CBB 18400 640 • 160 197-900 16557 1934 k CIND OLD STOCK. 142 165 1 654 (KE) Haight PRICE. (RR) 14.190. IV BL MICH 1951096 22.51 Sealey.. SPELD Bly. 14508 19554 å°‘ã—・ 220 ×8818 162142122 GF Art vative with time. by Bec SPEED WITH C 0835 75630 C000 129 CBE) 205 18 216 The. 89.700 Prov. CetEase OUR WEIGH IS LOST I 500s I THING UNDERER MAKE WEICH. TOOF IN EACH BUNDY . I WAS CHEAK Because we will last GIVE B 2 FORINTEGRAL -2. Proprietor 30/08/02 Document 2 T0i@/R! handwritten prung diff w CV. MULIA KARYA Export supplier JL.Sejarah No. 4 Km 11,5 Medan-Binjai Telp. 061) 8475954 Fax.(061) 45723244159186 Deli Serdang 20352 Indonesia CONTAINER NO: 1698778/SEAL MSC 31....