2019 (7) TMI 1998 - AT - Customs

Seeking rectification of mistake - error apparent on the face of record - scope for reliance on value of contemporaneous imports - extended period of limitation - HELD THAT - It was admitted by the Learned Counsel that the decision pertaining to adoption of contemporaneous price has been cited. Even though the decisions may not have been referred to, the scope for invoking of rule 5 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 has been dealt with in the fifth paragraph of the said order. Moreover, with the introduction of rule 10A in the said Rules, the consequence thereof stand substantially altered from those under the pre-amended rules. By invoking of rule 10A of the said Rules, assessing authority/value determining authority is required to carry the process of re-valuation through to its logical conclusion by sequential application of the several rules - In the absence of any counter to the invoking of rule 10A of the said Rules, the consequence thereof can be disputed only by bringing on record any specific details that may have a bearing on the adjustment for arriving at the assessable value. No such evidence was presented during the hearing and neither is any such averment. Redemption fine was set aside by placing reliance upon the decision in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS FINESSE CREATION INC. 2009 (8) TMI 115 - BOMBAY HIGH COURT . The mis-declaration, referred to in the eighth paragraph of the said order, pertains to the entries made at the time of import and, therefore, held that confiscation was not warranted. The elements prescribed for invoking the extended period are entirely different and the submissions made on behalf of the appellant during the course of the hearing did not persuade that ingredients were not lacking. This has been amplified sufficiently in order. While sustaining the invoking of the extended period for the purpose of confirmation of the duty liability, the penal detriments were set aside - the application is rejected.

Summary

Issues:
Rectification of mistake in final order under Custom Act, 1962 regarding duty liability, fine, and penalty upheld by Commissioner of Customs (Import), Mumbai.

Analysis:
The application under section 129B of the Custom Act, 1962 sought rectification of a mistake claimed to be apparent in the final order arising out of an appeal filed by M/s Shashi Dhawal Hydraulics Pvt Ltd against the order-in-original of the Commissioner of Customs (Import), Mumbai. The duty liability was upheld while the fine and penalty were set aside. The appellant contended that certain decisions on the reliance of the value of contemporaneous imports were not considered by the Tribunal, and the invoking of the extended period for confirmation of duty was also deemed as an error on record by the appellant's counsel.

During the hearing, it was acknowledged that the decision regarding the adoption of contemporaneous price had been cited, although not specifically referred to in the order. The Tribunal explained that the scope for invoking rule 5 of the Customs Valuation Rules had been addressed in the order. The introduction of rule 10A in the Rules altered the consequences substantially. By invoking rule 10A, the assessing authority is required to carry out re-valuation through the sequential application of rules, allowing adjustments for specified circumstances in the declared price. The Tribunal noted that no specific evidence challenging the invoking of rule 10A was presented during the hearing or subsequently.

The Tribunal set aside the redemption fine based on a precedent and concluded that mis-declaration at the time of import did not warrant confiscation. The Tribunal found that the elements required for invoking the extended period were present, and the appellant's submissions did not persuade them otherwise. The Tribunal sustained the extended period for confirming duty liability while setting aside the penal consequences, finding no error in doing so.

In conclusion, the Tribunal rejected the application for rectification of mistake, upholding the original order regarding duty liability, fine, and penalty, based on the detailed analysis provided during the hearing and the legal principles applied in the case.