2012 (10) TMI 698 - HC - Customs

Under valuation import of various spices and dry fruits Held that - When undervaluation is alleged, the Department has to prove it by evidence or information about comparable imports - adjudicating authority has given cogent reasons, for rejection of the invoice of the petitioner by placing reliance on the documentary evidence showing import of same goods - order is in consonance with Rule 6 of the Rules as well as the provisions of the Customs Act - petitioner had chosen not to appear before the second respondent, in spite of opportunity given - writ petition dismissed

Summary

Issues Involved:
1. Under-invoicing of imported goods.
2. Provisional release of goods.
3. Rejection of declared transaction value.
4. Violation of principles of natural justice.
5. Determination of valuation under Customs Valuation Rules.
6. Efficacy of alternative remedy.

Issue-wise Detailed Analysis:

1. Under-invoicing of Imported Goods:
The petitioner, a partnership concern engaged in the import of various spices and dry fruits, imported ten consignments of white poppy seeds from Turkey. The Assistant Commissioner of Customs did not clear the goods, alleging that the importers were attempting to import the white poppy seeds by under-invoicing. The declared unit price was USD 1510/MT (FOB) or USD 1575/MT (CIF), whereas contemporaneous imports were cleared at USD 2700/MT.

2. Provisional Release of Goods:
The petitioner sought provisional release of the goods, which was initially rejected. However, the High Court directed the petitioner to pay 20% of the differential duty and furnish a personal bond for the balance. Upon compliance, the goods were provisionally released pending final adjudication.

3. Rejection of Declared Transaction Value:
The department issued a show cause notice proposing to reject the transaction value under Rule 10-A of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, and to fix the unit price at USD 2700 PMT (CIF). The petitioner did not reply to the show cause notice but requested deferment of proceedings, which was not accepted. The final assessment was made at USD 2700 PMT (CIF).

4. Violation of Principles of Natural Justice:
The petitioner contended that the impugned order violated the principles of natural justice as the documents forming the basis of the value assessment were not supplied. However, the court found that the show cause notice included a copy of the letter from M/s. Lakshmi Trading Company, Delhi, and other necessary documents were to be shown at the personal hearing. The petitioner chose not to demand any documents or file a reply, thus failing to avail the opportunity given.

5. Determination of Valuation under Customs Valuation Rules:
The petitioner argued that the valuation should be as per Rule 6 of the Customs Valuation Rules, 1988, which considers the transaction value of similar goods sold for export to India. The court noted that the valuation was based on the import value of similar goods by M/s. Lakshmi Trading Company, Delhi, at the same time, thus complying with Rule 6.

6. Efficacy of Alternative Remedy:
Though the petitioner had an alternative remedy of appeal under Section 128 of the Customs Act, 1962, the court considered the writ petition as it was admitted in 2007. The court emphasized that the statutory alternative remedy was available, but it was not proper to relegate the petitioner to this remedy at this stage.

Conclusion:
The court dismissed the writ petition, finding no merit in the contentions raised by the petitioner. The impugned order was held to be in consonance with Rule 6 of the Customs Valuation Rules and the provisions of the Customs Act. The petitioner's failure to appear before the adjudicating authority and avail the opportunity given was noted. The court concluded that there was no violation of the principles of natural justice, and the valuation was supported by positive unrebutted evidence.