2016 (3) TMI 509 - AT - Customs

Rejection of declared price - Determination of value under Rule (8) of Customs Valuation Rules, 2007 - Imported apples from U.S.A. and undervalued to evade duty - Held that - in view of the decision of the Hon ble Apex Court in the case of Commissioner of Customs, Calcutta Versus South India Television (P) Ltd. 2007 (7) TMI 9 - SUPREME COURT OF INDIA the value of imported goods shall be the value at the time of importation to India i.e. when the goods reaches Customs barriers, so, before rejection of transaction value the department has to rule out whether there are any similar or identical goods imported at higher price. Therefore, when the price of similar or identical goods are same price and it was accepted by the Customs in all major Custom Houses, there is no justification for taking recourse to Rule (8) of CVR and to adopt the price of Country of Exportation. Demand of differential duty - Section 28 (1) of Customs Act, 1962 - Declared transaction value rejected - Held that - in the absence of any authentic evidence from suppliers end i.e. either in the form of letter or a statement from them explaining the reason for maintenance of two sets of invoices in their system and also confirming receipt of flow back of excess amount, the department s reliance on unsigned computer generated invoices cannot be relied on, as sole evidence of undervaluation. Mere authentication of a document by U.S. Agent or officers of OCGI, USA does not automatically become a valid evidence to reject the declared price in the customs invoice and to redetermine value under Rule 8. Therefore, as the declared value is not rejected, there is no question of demand of differential duty is raised. Confiscation and penalty - Section 111(m), 114A and 112(a) of Customs Act, 1962 respectively - Held that - the goods are not liable to be confiscated under Section 111(m) ibid nor penalty is leviable under Section 114A ibid. Since the main demand is set aside against the main appellants, the personal penalties is also not leviable under section 112(a) ibid. - Decided in favour of appellant with consequential relief

Issues Involved:
1. Whether the rejection of transaction value and redetermination of value under Rule 8 of the Customs Valuation Rules (CVR) was justified.
2. Whether the evidence provided by the Department, including parallel invoices and statements, was sufficient to prove undervaluation.
3. Whether the adjudicating authority followed the correct legal procedure in determining the value of imported goods.
4. Whether the penalties and confiscation orders imposed were valid.

Issue-wise Detailed Analysis:

1. Rejection of Transaction Value and Redetermination under Rule 8:
The adjudicating authority rejected the declared transaction value of the imported apples and redetermined the value under Rule 8 of the CVR based on parallel invoices obtained from the overseas suppliers. The Tribunal found that the parallel invoices were not signed or authenticated by the suppliers and were merely computer-generated documents. The Tribunal held that the value should be determined sequentially as per the CVR, and the adjudicating authority erred by directly applying Rule 8 without exhausting Rules 5 to 7. The Tribunal emphasized that the price of the country of exportation cannot be taken for valuation in India unless there is evidence of contemporaneous imports at higher prices.

2. Sufficiency of Evidence for Undervaluation:
The Department relied on retracted statements and parallel invoices to prove undervaluation. The Tribunal noted that the statements were retracted immediately and lacked corroborative evidence. The parallel invoices were not signed by the suppliers and lacked authenticity. The Tribunal held that the Department failed to provide sufficient evidence to prove excess payment or flow back to the supplier. The Tribunal also noted that the Department did not consider the contemporaneous imports submitted by the appellants, which showed similar prices accepted by other customs houses.

3. Legal Procedure in Determining Value:
The Tribunal found that the adjudicating authority did not follow the correct legal procedure as mandated by Section 14 of the Customs Act and the CVR. The authority failed to consider the contemporaneous imports and directly applied Rule 8, which is contrary to the legal requirement of sequentially applying Rules 5 to 7. The Tribunal relied on the Supreme Court's decision in the case of CC Vs South India Television (P) Ltd., which held that the Department must provide cogent reasons for rejecting the transaction value and must follow the valuation rules sequentially.

4. Validity of Penalties and Confiscation Orders:
Since the main demand of differential duty and the rejection of transaction value were set aside, the Tribunal also set aside the confiscation orders under Section 111(m) and the penalties under Sections 114A and 112(a) of the Customs Act. The Tribunal held that without sufficient evidence of undervaluation and flow back, the penalties and confiscation orders could not be sustained.

Conclusion:
The Tribunal allowed all four appeals, set aside the impugned orders, and accepted the transaction value declared by the appellants. The differential duty demand, confiscation orders, and penalties were all set aside, providing consequential relief to the appellants.

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