2019 (7) TMI 970 - CESTAT MUMBAI

Valuation of imported goods - Acetonitrile - undervaluation - rejection of declared value - provisional release of goods - Appellants have raised the issue in respect of two bill of entries i.e. B/E No 702642 dated 1.10.2009 and 704506 dated 3.10.2009 the assessments are provisional and hence the proceedings for seizure, confiscation and demand of duty premature - HELD THAT:- We are not able to appreciate the argument advanced by the appellant. The Bond executed by the appellant on 20.11.2009 is titled “Bond With Security to be executed by the person seeking release of goods seized pending investigation.” - the case in hand is of provisional release of seized goods and not the case of provisional assessment as claimed by the appellants.

Release of goods which is not at all seized - Appellants have contended that goods covered by the B/E’s other than B/E No 702642 and B/E No 704506 were never seized and there is no question for the release of the same against Bond or Bank Guarantee - HELD THAT:- only those goods which were seized and provisionally released to the appellants could have been held liable for confiscation and confiscated. - Since these goods are not available for seizure or confiscation, the order of Commissioner the goods imported against these Bill of Entries is bad in law.

Misdeclaration of value - admissibility of exemption under notification No 94/96-Cus - HELD THAT:- There is no merits in the submissions of the Appellant’s in respect of admissibility of exemption under Notification No 94/96-Cus. Also there are no merits in the submissions of the Appellant in respect of the value of the goods, which has been determined on the basis of value of contemporaneous imports of the same goods.

Demand made on the basis of facts admitted during the statement - HELD THAT:- The fact about undervaluation of the goods need not be again established as the same has been admitted by the Appellant themselves in their statements recorded under Section 108. However the fact of undervaluation is further corroborated by the value of contemporaneous imports made by the other importers at or about the same time. The appellants have misdeclared the value of the imported goods with intention to evade payment of duty - the extended period of limitation as provided by proviso to sub section (1) section 28 of Customs Act, 1962 is applicable for making the demands. Since the demand of duty as determined by the Commissioner is upheld, the demand of interest under Section 28AB is also upheld.

Penalty - HELD THAT:- The order of Commissioner, is modified to hold that penalty imposed under Section 114A, to be equivalent to the duty demanded. It is settled law that in case where duty demand has been determined by invoking the proviso to Section 28(1) of Customs Act, 1962 penalty under Section 114A will get attracted - Penalties imposed on Appellant 2, 3 and 4 are dropped.

Appeal allowed in part.