2015 (12) TMI 1202 - AT - Customs

Undervaluation of import of Dyed Woven Fabrics - denial of availment of DFIA licence for clearance of the goods - confiscation and imposition of fine and penalty - Held that - appellant is engaged in trading of imported fabrics and imported Polyester Dyed Woven Fabrics from China. Appellant s contention is that contemporaneous imports relied by Revenue in the case of Bill of Entry No.6800547 dt. 11.5.2012 of M/s.ICON Fibers and Fabrics P. Ltd., Mumbai is not comparable. In this regard, we find that the impugned goods and the comparable goods were originated from China and shipment made from M/s.Shaoxing Mina Textile Co. Ltd., China in and around the same time and the date of shipment of both consignments are dt. 29.10.2011 and 11.11.2011 respectively. The appellant is also a trader and purchased the goods from supplier who is also a trader which is similar to evidence relied by Revenue. We find that appellant failed to produce any evidence of purchase order and terms and conditions of sale and manufacturer s invoice before the Commissioner of Customs. Appellants had relied various Bills of Entry and invoices in the form of additional evidence submitted before the Tribunal of import of Polyester Fabrics. In this regard, we find that appellant submitted written submissions to SCN before the adjudicating authority and also appeared for the personal hearing and failed to substantiate their claim during the adjudication proceedings. Therefore, we do not find any force in appellant relying these documents at this juncture. On the valuation of the goods based on contemporaneous imports, we rely Hon ble Supreme Court judgement in the case of CC Mumbai Vs ShiBani Engg. System (1996 (8) TMI 106 - SUPREME COURT OF INDIA). - In the case of CC Vs Prodeline India Pvt. Ltd. 2006 (8) TMI 186 - SUPREME COURT OF INDIA wherein the Court has clearly held that Revenue is bound to prove the declared price is not true value and should bring on record any evidence of identical goods/similar goods imported at higher price. In the absence of any valid documents by the appellant it is evident that declared price of US 0.70 per mtr. is not a normal price and the same cannot be considered as transaction value. We find that adjudicating authority correctly determined the value under Rule 4(3) of CVR 2007 and taken the lowest contemporaneous price of US 1.05 per mtr. instead of US 2.36/mtr of contemporaneous import was available. Therefore, respectfully following the ratio of above two decisions, we find that rejection of declared price and enhancement of value from US 0.70 to US 1.05 per mtr. determined by the adjudicating authority is fully justified and liable to be upheld. Consequently, the confiscation of the seized goods under Section 111 (m) and demand of differential duty of ₹ 69,61,352/- on the re-determined value under Section 28 of Customs Act is upheld There was no allegation made in the SCN for the denial of benefit of DFIA Licence or any misuse of DFIA licene for clearance of the goods. Therefore, we hold that appellants are entitled to utilize DFIA licence for clearance of the said goods. Accordingly, we allow DFIA benefit for clearance of the said goods. - impugned order is upheld but for the reduction in RF and penalty and allowing DFIA benefit - Decided partly in favour of assessee.

Summary

Issues Involved:
1. Undervaluation of imported goods.
2. Denial of availment of DFIA license for clearance of the goods.
3. Confiscation and imposition of fine and penalty.

Detailed Analysis:

1. Undervaluation of Imported Goods:
The primary issue concerns whether the declared value of US$ 0.70 per meter for "Polyester Woven Dyed Fabrics" was correct or if the enhancement to US$ 1.05 per meter by the Customs was justified. The appellant, M/s. Paarth Trading Company, argued that the declared price was accurate and comparable to contemporaneous imports. However, the Customs authorities, based on the investigation and contemporaneous imports from M/s. ICON Fibers and Fabrics P. Ltd., Mumbai, found the declared value to be significantly lower than the standard price of US$ 2.36 per meter. The adjudicating authority determined that the declared value was not supported by any purchase order, terms and conditions of sale, or manufacturer's invoice. Consequently, the value was re-determined at US$ 1.05 per meter. The Tribunal upheld this re-determination, citing the lack of valid documents from the appellant to justify the lower declared price and referencing relevant Supreme Court judgments, including CC Mumbai Vs ShiBani Engg. System and CC Vs Prodeline India Pvt. Ltd., which support the rejection of unrealistic transaction values.

2. Denial of Availment of DFIA License:
The adjudicating authority initially denied the benefit of the DFIA license for the clearance of the goods. However, the Tribunal found that there was no allegation in the Show Cause Notice (SCN) regarding the misuse of the DFIA license. Therefore, the Tribunal held that the appellants are entitled to utilize the DFIA license for the clearance of the imported goods, allowing the benefit of the DFIA license.

3. Confiscation and Imposition of Fine and Penalty:
The goods were confiscated under Section 111 (m) of the Customs Act, and a penalty was imposed under Section 112A. The Tribunal found the seizure to be justified based on the reasonable belief that the goods were undervalued. The adjudicating authority's decision to confiscate the goods and demand differential duty of Rs. 69,61,352/- was upheld. However, considering the overall facts and circumstances, including the fact that the appellants did not avail provisional release of the goods, the Tribunal reduced the redemption fine from Rs. 30 lakhs to Rs. 10 lakhs and the penalty on the proprietor from Rs. 30 lakhs to Rs. 5 lakhs.

Conclusion:
The Tribunal upheld the adjudicating authority's decision on undervaluation and the demand for differential duty, justified the seizure of goods, and allowed the benefit of the DFIA license. The redemption fine and penalty were reduced, and both appeals were partly allowed.