2016 (1) TMI 1102 - AT - Customs

Valuation of goods - Enhancement in valuation of goods - Inclusion of value of the mixed acid oils and mixed fatty acid imported - DIFFERENCE OF OPINION Whether there was deliberate mis-declaration of description and value of imports proved from investigation result, report of CRCL and various evidence gathered by investigation as well uncontroverted adjudication finings as recorded by Technical Member and adjudication should be upheld? OR Whether merely relying on the decision of tribunal in the case of H.K. International (2011 (7) TMI 825 - CESTAT, NEW DELHI) irrespective of peculiar facts of each case tested on the basis of law, adjudication is to be set aside as recorded by Judicial Member? - Matter referred to larger bench.

Summary

Issues Involved:
1. Mis-declaration of description and value of imported goods.
2. Enhancement of assessable value.
3. Reliance on previous Tribunal decision.
4. Admissibility of evidence and investigation findings.
5. Applicability of the Import Policy and regulations.
6. Imposition of penalties and confiscation.

Issue-wise Detailed Analysis:

1. Mis-declaration of Description and Value of Imported Goods:
The core issue revolves around the alleged mis-declaration by M/s. JMD Oils Pvt. Ltd. regarding the description and value of imported mixed acid oils and mixed fatty acids. The samples tested revealed that the imports were actually palm stearin, palm fatty acid, and other related substances, which were different from the declared items. The appellant accepted the enhanced value and cleared the goods on payment of duty but later contested the further enhancement to US$ 420.

2. Enhancement of Assessable Value:
The assessing officer initially enhanced the value of the goods based on the samples tested. Subsequently, further proceedings led to the assessable value being enhanced to US$ 420 per MT. The appellant argued that this enhancement was not justified, relying on a previous Tribunal decision in a similar case.

3. Reliance on Previous Tribunal Decision:
The appellant's defense heavily relied on the Tribunal's decision in the case of H.K. International vs. CC New Delhi, where similar evidence was deemed insufficient to discard the declared transaction value. The Tribunal in that case had set aside the enhancement of value, noting the lack of valid and legal evidence.

4. Admissibility of Evidence and Investigation Findings:
The evidence included statements from two indenting agents and the results of sample tests. The adjudicating authority found that the evidence was identical to that in the H.K. International case. However, the Technical Member emphasized the detailed investigation and technical reports, which proved the goods were not as declared and were undervalued.

5. Applicability of the Import Policy and Regulations:
The import of palm stearin without appropriate licenses or permissions was highlighted as a violation of the Import Policy. The appellant did not have the required facilities or approvals to import and process palm stearin, which further supported the claim of deliberate mis-declaration.

6. Imposition of Penalties and Confiscation:
The adjudicating authority imposed penalties and ordered confiscation of the goods under various sections of the Customs Act. The Technical Member upheld these penalties, citing the fraudulent intent and deliberate mis-declaration by the appellant. The Judicial Member, however, disagreed, relying on the precedent set by the H.K. International case.

Separate Judgments Delivered:
The Members of the Tribunal delivered separate judgments. The Judicial Member set aside the impugned order, allowing the appeals based on the precedent of H.K. International. The Technical Member, however, upheld the adjudication, emphasizing the detailed investigation and evidence of mis-declaration and undervaluation.

Majority Order:
The matter was referred to a third member due to the difference of opinion. The third member, after considering the arguments, agreed with the Judicial Member, setting aside the impugned order and allowing the appeals. The final majority order allowed the appeals filed by the appellants, providing consequential relief.

Conclusion:
The appeals were allowed based on the majority decision, which relied on the precedent of H.K. International and found the evidence insufficient to justify the enhanced assessable value and penalties imposed by the adjudicating authority. The detailed investigation and technical reports were not deemed sufficient to override the declared transaction value in the absence of corroborative evidence of extra payments or deliberate undervaluation.