TaxTMI 
TaxTMI 
2026 (7) TMI 1206
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....er the order dated 06.04.2018, rejected the declared value, enhanced the value, ordered confiscation of the goods and also demanded differential duty along with interest. Adjudication authority also imposed penalty under Section 114AA on the Appellant and the CEO, Mr. Mohammad Rafiq of the Appellant. Aggrieved by said orders, Appeals are filed before the Commissioner (Appeals) and Commissioner (Appeals) as per the impugned order rejected the appeals filed by the Appellants herein. Aggrieved by said order, present appeals are filed. 3. When the appeals came up for hearing, Learned Counsel for the Appellant submits that Appellant had imported PVC Profiles, PVC Flooring Material, Rivets and Car Accessories from China during the period from 2013-14. Alleging mis-declaration regarding freight prepaid, investigation was conducted. During investigation, goods imported under various Bill of Entries were detained and released provisionally in April 2014. Thereafter show cause notice was issued on 19.04.2017 demanding differential duties on the latest two Bill of Entries which were provisionally assessed in April, 2014 and demand was also raised in respect of the goods covered by other Bi....
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....should be applied. The difficulty which may be faced by the Revenue is of no consequence. The power under Section 11A of the Act can be invoked only when a duty has not been levied or paid or has been short-levied or short-paid. Such a proceeding can be initiated within six months from the relevant date which in terms of sub-section (3)(ii)(b) of Section 11A of the Act (which is applicable in the instant case) in a case where duty of excise is provisionally assessed under the Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof. A proceeding under Section 11A of the Act cannot, therefore, be initiated without completing the assessment proceedings". 6. Learned Counsel submits that the issue was considered by the Hon'ble High Court of Calcutta in the matter of M/s. A.S. Syndicate (Warehousing) P. Ltd. Vs. Commissioner of Cus. (Port) - 2011 (267) E.L.T 469(Cal.) wherein it is held that:- "8. In International Computers Indian Manufacturers Ltd. and Anr. Vs. Union of India & Ors. reported in 1981 (8) E.L.T. 632 (Del.), cited on behalf of the petitioners, the Division Bench of Delhi High Court inter alia held that Section 28 was ....
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....d to the importer, in Microsoft Excel files that could be easily modified or files that probably might have been locally fabricated, were found. These files were copied and transferred to newly created separate folders viz TAYASH-CYBER-FORENSICS, TAYASH-COMPUTER4-FORENSICS, FORENSICS & TAYASH MAC TAYASH-Addl Harddisk-FORENSICS, respectively. For that the Respondent in the impugned order mentions about a statement recorded under Section 108 of Customs Act, 1962 from Mr. Vimal T. Such a statement was never made available to the Appellant, and the same was not one of the documents attached to the show cause notice (SCN. Further submits that when the services of a Cyber Forensic Expert was engaged, the forensic examination of hard-disc will reveal if a document has been edited or not, as the evidence of previous versions are not permanently erased. There is no allegation that the hard-disc was subjected to any low level formatting. The First Appellate Authority instead of upholding the findings of the Adjudicating Authority, ought to have found that it is impossible to carry out any tampering with documents/ files without leaving tell-tale signs which a Cyber Forensic Expert could....
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....nd confirmed by invoking the extended period of limitation, Learned Counsel for the Appellant submits that the Respondent has very casually dealt with the issue by stating that as the show cause notice was issued under Section 28 of the Customs Act, 1962, extended period of limitation will apply. In this regard, Learned Counsel submits that there is no suppression of facts as regards undervaluation in related 237 Bill of Entries. Appellant had agreed to Revenue's suggestion to load the value marginally. The fact that Bills of Entry No. 2964813 and 2964751, both dated 12.08.2013 pertained to import of PVC flooring based on the then prevailing price of Rs.65 per kilo was not considered at all. Comparing the value of profiles imported during 2014 cannot be done with the declared value of PVC flooring imported during 2013. The goods are not similar and the period is also vastly different. The fact that both are petroleum products and the prices will vary depending on the international petroleum prices was also not considered by the Respondent. The contention that for the consignment in the Bill of Entry No. 4603627 dated 15.10.2013, the exporter had initially wanted to charge a hig....
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....rther submits that from the importer's submission, value actually payable was USD 40,260/- and USD 6,604.50 (FOB) in respect of goods imported under Bills of Entry Nos. 5002416/ 25.03.2014 and 5016017/ 26.03.2014. Further when the goods imported under Bills of Entry Nos. 5002416/ 25.03.2014 and 5016017/ 26.03.2014 were provisionally assessed, provisional assessment can be finalized under Section 18(2) based on the invoices submitted by the importer along with the voluntary statement. 10. Learned AR further submits that Clause (iii) of Explanation appended to Rule 12 of the Customs Valuation Rules 2007, sets out some of the conditions for the reason to doubt the declared value and on the basis of which it can be rejected. The same is as below:-. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include - (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed; (b) the sale involves an abnormal discount or abnormal reduction from the o....
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....vestigation, recovery of invoice was made related to Bill of Entry Nos. 2964813 and 2964751 both dated 12.08.2013, Bill of entry No.3538925 and 4603627 both dated 15.10.2013. The differential duty payable against all these bills of entries is Rs.6,60,025/- as per. Annexure-A of show cause notice (SCN). As per evidence available on record, we find that there was under valuation in said bills of entries. Accordingly, impugned order confirming differential duty payable against the bills of entry of Rs.6,60,025/- as per Annexure-A of SCN is upheld and goods are liable for confiscation. 14. As regards redemption fine and penalty, we find that there is no finding regarding market value of the goods to ascertain the margin of profit and following the ratio of the decisions of this Tribunal in similar cases which were upheld by the jurisdictional High Court of Kerala in the matter of CC Cochin Vs. Office Devices (2009 (240) E.L.T. 336 (Ker.), wherein it is held that:- "8. The dispute being only on the rate of redemption fine and penalty which inter alia depends on the totality of the facts and circumstances in each case, we fail to see how any question of law, much less any sub....
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....rted under 273 bills of entries as per Annexure-2 of the show-cause notice, there is no quantification of the differential duty shown separately and as per the impugned order, confirmed differential duty on PVC profiles against 273 bills of entries based on the PVC flooring imported during 2013. However, raw material for the product being manufactured from crude oil and having frequent changes in value cannot be considered as basis for assessing the price @ Rs.70/kg. Further we find that the allegations of mis-declaration, suppression of facts and non-payment or short payment of Customs Duty would arise only after finalization of assessments and adjustment of the duty paid or payable in terms of Section 18 (2) of the Customs Act, 1962. There was no legal justification for issue of show cause notice (SCN) for finalization of the assessments by the Commissioner of Customs under Section 18 (2) of the Customs Act, 1962, instead of the Proper Officers. The issue whether show-cause notice under Section 28 of the Customs Act, 1962 can be issued in such cases where assessment is not finalised, Hon'ble High Court of Calcutta in the matter of A.S. Syndicate (Waterhousing) P. Ltd. Vs. CC, (Po....