TaxTMI 
TaxTMI 
2025 (10) TMI 278
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....ion of the goods covered by the remaining 111 Bills of Entry under CTI 9006 99 00 and re-classifies them under CTI 9405 40 10. In respect of ICD TKD, the Principal Commissioner determined the differential duty amount with interest under 28AA of the Customs Act, 1962 [the Customs Act] and imposed penalties under section 114AA of the Customs Act. The Principal Commissioner also determined the differential duty amount with interest in respect of ICD Patparganj and Air Cargo (Import) Delhi and imposed penalties. The Principal Commissioner also appropriated the amount deposited during investigation. 2. The appeal, therefore, involves two issues. The first issue relates to classification of the imported goods and the second issue relates to valuation of the imported goods. Classification 3. The goods imported by the appellant were LED continuous lighting equipment and they were classified by the appellant under Customs Tariff Heading [CTH] 9006 as photography flashlights on which basic customs duty was paid @ 10%. According to the department, the goods should have been classified under CTH 9405 as lamps and lighting fittings, for which basic customs duty would be payable @ 25%. ....
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....drawn by the Principal Commissioner that the appellant had misrepresented the items. 7. It would, therefore, be useful to reproduce the relevant portion of the order dated 01.12.2022 passed by the Joint Commissioner in respect of the appellant for the same goods and it is as follows: "1. M/s. Simpex filed various Bills of Entry, as detailed in Table-A, for import of goods declared as "Simpex Light Round (Photographic Equipment) etc." The importer classified the said items under Customs Tariff Heading (hereinafter called in short "CTH") 9006 99 00 and paid BCD@10%, Social Welfare Surcharge@10% and IGST@18% (as per Sr. No. 411B of Schedule III of IGST Notification No. 001/2017-Integrated Tax (Rate) dated 28.06.2020). 2. As per the Customs Tariff Act, 1975, "Lamps and Lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included" are classified under tariff heading 9405 (including ceiling or wall lamps, electric table, desk bedside or floor standing lamps, LED lamps and others). ***** 14.5 I find that the noticee has also relied upon the OIA dated 07.06.2022 passed by the Commissioner of Customs (A....
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....om all the discussions above, the product catalogue and other documents submitted by the noticee, I find that the impugned goods possess the characteristics of photographic flash lights. They produce bright light for a very small duration (a fraction of a second) and are not permanent source of light in the studio. I find that the allegations of the department are based upon the description of the goods declared in bills of entry. However, I find that no contrary evidence other than that has been provided by the department. Therefore, at this stage where the impugned goods are not available for inspection and examination, the contention of the noticee that impugned goods are flash lights has to be accepted and impugned goods are properly classified under CTH 9006 only. 17. I find that the impugned goods produce flash or bright light for a very short duration of 1/2800 secs 1/3000 secs every 3-5 seconds and do not have a permanently fixed light source. Hence, subject goods are categorically excluded from CTH 9405 and expressly included under Chapter Heading 9006 and thus cannot be classified under CTH 9405 9900. 18. Further, being bound by the axiom of judicial dis....
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....ce, subject imported goods are categorically excluded from Chapter 9405 and expressly included under Chapter Heading 9006 and thus cannot be classified under CTH 9405 99 00 under any circumstance. The classification declared by the Appellant was correct and needs no interference." (emphasis supplied) 9. It needs to be noted that the order dated 01.12.2022 passed by the Joint Commissioner notices that the order dated 07.06.2022 passed by the Commissioner (Appeals) had been accepted by the department. 10. When these two orders passed by the Commissioner (Appeals) and the Joint Commissioner were in respect of the same products and in matters pertaining to the appellant and the order passed by the Commissioner (Appeals) had been accepted by the department, the Principal Commissioner could not have discarded these orders and re-classified the goods from CTI 9006 99 00 to CTI 9405 40 10. It was not open to the Principal Commissioner to comment that the order dated 07.06.2022 passed by the Commissioner (Appeals) does not discuss any evidence to hold that the goods were covered under CTI 9006 99 00. The Principal Commissioner could not have taken a different view, more particularl....
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....comparable goods which also shows undervaluation. 13. The relevant portion of the order passed by the Principal Commissioner in respect of valuation is reproduced below: "7.1 ***** I observe that this proposal for re-determination of value of these goods has been made on the following grounds: (i) That in the impugned matter, during search of the premises of the Noticee on 30.03.2022 at B-62, G.T. Karnal Road, Industrial Area, North West Delhi, Delhi, 110033; it was found that the importer had stored the imported goods in two godowns at B-36/6 and B-36/10 in the same locality i.e., G.T. Karnal Road, Industrial, North-West Delhi, Delhi, 110033. While inquiring about the status of imported goods, the importer has furnished a stock statement of the imported goods totally valued at Rs. 12,74,40,832/- and the same consisted of different types of imported goods i.e., flash lights, LED Continuous Lights etc. Shri Pankaj Verma, Managing Partner of Simpex stated that as per the stock statement available with them, the value of imported branded goods stored in the said godown is Rs.6,20,05,173/- and value of unbranded imported goods is Rs. 6,54,35,660/-. Shri Pankaj Verm....
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.... it was also accepted by him in his statement that he would furnish the actual stock position after ascertaining the same. It is further observed that the revised statement contained the unit price, total value of the imported goods bearing the brand names - Godox, Vivitar & Nissin (Rs. 6,27,38,434/-) declared to the customs at the time of import and the revised value of the goods bearing the brand names - Godox, Vivitar & Nissin amounting to Rs. 7,84,23,087/- was submitted by Shri Pankaj Verma at the time of his statement dated 18.04.2022. On careful examination of this revised stock statement; it is observed that the same contains details of the price declared to the Customs, actual purchase price and original value of the goods. It is but obvious that these detailed values cannot be arrived at without actual database present with the Noticee. On the other hand, on perusal of the CA certificate dated 23.04.22 submitted by the Noticee on 26.04.2022; it is observed that the same has declared the value of such goods as Rs. 6,27,38,434/- which is the equal value of the seized goods in the impugned matter and which was submitted as tentative value of such goods at the time of search p....
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....nuous lights) to ascertain the dealer price of comparable goods of flash lights & continuous lights; and also to compare the dealer price (selling price) followed by M/s. Delhi Photo Store (wholesaler) with the dealer price (selling price) followed by other wholesalers for the comparable goods sold to M/s Visual Point India Pvt Ltd, Chennai & M/s. F. Stop, Chennai. The details of such market survey are mentioned at Para 2.12 above and not being reproduced for the sake of brevity. It is observed that the Noticee has contended that the market survey has no evidentiary value since they were not made part of the same. However, it is served that the Noticee; vide their letter date 25.02.2023 stated that they do not have a published price list, retail price list and dealer price list for the goods sold form Simpex to M/s Delhi Photo Store and acknowledged the market survey dated 23.09.2022. 7.2. In view of the discussions above, I find that the transaction value declared by the importer under the provisions of Section 14 of the Customs Act 1962 read with Customs Valuation Rules, 2007, is unacceptable. Therefore, the value declared before the Customs Authorities for clearance of ....
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....ssions made by the learned counsel for the appellant and the learned authorized representative appearing for the department in the matter of undervaluation have been considered. 17. Much emphasis has been placed by the Principal Commissioner on the statement made by Pankaj Verma under section 108 of the Customs Act on 18.04.2022. It is alleged that during the course of the statement made under section 108 of the Customs Act he submitted a revised statement showing the value of the imported branded goods as Rs. 7,84,23,087/-. 18. The issue that arises for consideration is whether a statement made under section 108 of the Customs Act can be considered as relevant. This issue was examined by a Division Bench of this Tribunal in M/s. Surya Wires Pvt. Ltd. vs. Principal Commissioner, CGST, Raipur. The Tribunal examined the provisions of sections 108 and 138B of the Customs Act as also the provisions of sections 14 and 9D of the Central Excise Act, 1944 and observed as follows: "21. It would be seen section 14 of the Central Excise Act and section 108 of the Customs Act enable the concerned Officers to summon any person whose attendance they consider necessary to give evid....
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....statements made under section 14 of the Central Excise Act or under section 108 of the Customs Act during the course of an inquiry under the Acts shall be relevant for the purpose of proving the truth of the facts contained in them only when such persons are examined as witnesses before the adjudicating authority and the adjudicating authority forms an opinion that the statements should be admitted in evidence. It is thereafter that an opportunity has to be provided for cross-examination of such persons. The provisions of section 9D of the Central Excise Act and section 138B(1)(b) of the Customs Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either under section 14D of the Central Excise Act or under section 108 of the Customs Act. The Courts have also explained the rationale behind the precautions contained in the two sections. It has been observed that the statements recorded during inquiry/investigation by officers has every chance of being recorded under coercion or compulsion and it is in order to neutralize this possibility that statements of the witnesses have to be recorded bef....