2024 (3) TMI 764 - SCH - Customs

Valuation of Goods - Bar of limitation in the exercise of powers under sub-section (2) of Section 129A - Mis-declaration and undervaluation of goods - Imports goods as ''camera stabilizer devices'' - imports identical/similar items with the same model numbers at higher and different unit prices - Duty Demand - confiscation - penalties under Sections 112(a) and 114AA - HELD THAT - On plain reading of Section 129A, we find that no specific time period has been prescribed for the Committee of Commissioners to exercise the power under sub-section (2) of Section 129A. Section 129D of the Customs Act deals with similar powers of the Committee of Commissioners when orders are passed by the Principal Commissioners of Customs as adjudicating authority. There is a similar power to direct the proper officer to apply to the Appellate Tribunal. However, sub-section (3) of Section 129D imposes a specific limitation of three months from the date of communication of the order of the adjudicating authority. Thus, there is no prescribed period of limitation for passing an order in exercise of the power under sub-section (2) of Section 129A In the present case, the relevant period of 10 months is covered by the COVID-19 pandemic. During the said period, in suo motu RE COGNIZANCE FOR EXTENSION OF LIMITATION, this Court, on 23rd September 2021, while disposing of Miscellaneous Application No.665 of 2021, extended the period of limitation provided under the statutes. In the facts of the case, considering the period of the COVID-19 pandemic, it cannot be said that the Committee of Commissioners has taken an unreasonably long time to decide. Considering the extraordinary circumstances prevailing in those days due to COVID-19, the decision was taken within a reasonable time. The Committee took the decision on 2nd November 2021, which was received by the Deputy Commissioner (Review) on 11th November 2021, and the appeal was preferred on 17th November 2021. It is true that under Sub-Section (3) of Section 129A, a period of limitation of 3 months has been provided for preferring an appeal which commences on the day on which the order sought to be appealed against is communicated to the concerned Authority. But, even the said period stood extended in view of the orders this Court passed from time to time in suo motu proceedings. Issue of undervaluation has been discussed in detail in a decision of this Court in the case of Commissioner of Central Excise and Service Tax, Noida v. Sanjivani Non-ferrous Trading Pvt. Ltd. 2018 (12) TMI 738 - SUPREME COURT . We may also make a note of the statement made by an officer of the appellant during the inquiry before the adjudicating authority. In paragraph 11, he stated that there is a little difference in the hardware and software functions in the disputed goods as compared to the earlier versions. In the order-in-original and in the impugned judgment of CESTAT on facts, it was found that Item nos. 1 and 3 were identical goods, and Item no. 2 was of similar goods. Detailed reasons have been recorded in the order-in-original as to why the transaction value of the imported goods has been discarded. Cogent reasons have been assigned to arrive at the assessable value. Hence, in view of the findings recorded by the CESTAT, we find no error in the view taken. No fault can be found with the imposition of penalties. Hence, there is no merit in the appeal and the same is dismissed with no order as to costs.

Summary

Issues Involved:
1. Bar of limitation in the exercise of powers under sub-section (2) of Section 129A of the Customs Act.
2. Whether the goods imported by the appellant were undervalued and mis-declared.
3. Determination of the assessable value of the imported goods.
4. Imposition of penalties under Sections 112(a) and 114AA of the Customs Act.

Issue-wise Detailed Analysis:

1. Bar of Limitation in the Exercise of Powers under Sub-section (2) of Section 129A:

The appellant argued that the review order by the Committee of Commissioners was time-barred, as it was passed more than 10 months after the Commissioner (Appeals)' order. The court noted that no specific time limit is prescribed under sub-section (2) of Section 129A for the Committee of Commissioners to exercise their power. However, a similar power under Section 129D has a limitation of three months. The court emphasized that actions must be taken within a reasonable time even if no specific period is provided. Given the extraordinary circumstances of the COVID-19 pandemic and the suo motu orders by the Supreme Court extending limitations, the court found that the Committee's decision was taken within a reasonable time. Thus, the appeal was filed within an acceptable timeframe considering the pandemic's impact.

2. Whether the Goods Imported by the Appellant were Undervalued and Mis-declared:

The appellant contended that the goods were not identical or similar to previous imports and that the CESTAT ignored the definitions under the Valuation Rules. The court referred to the adjudicating authority's findings and the CESTAT's affirmation that the goods were indeed undervalued and mis-declared. The goods were examined 100% by SIIB officers, and it was found that the goods were grossly undervalued. The court noted that the appellant's past import details showed higher prices for identical/similar items.

3. Determination of the Assessable Value of the Imported Goods:

The court referred to the decision in Commissioner of Central Excise and Service Tax, Noida v. Sanjivani Non-ferrous Trading Pvt. Ltd., which outlines that the transaction value can be discarded if there are imports of identical or similar goods at a higher price. The adjudicating authority rejected the declared assessable value of Rs.12,87,742/- and assessed the value at Rs.66,18,575/-. The court found that the adjudicating authority and CESTAT provided detailed reasons for discarding the transaction value and arriving at the assessable value. The comparative table of goods showed that the products were identical/similar except for being described as an "unpopular brand."

4. Imposition of Penalties under Sections 112(a) and 114AA of the Customs Act:

The adjudicating authority imposed penalties of Rs.2,00,000/- and Rs.3,31,000/- on the importer under Sections 112(a) and 114AA respectively. The court found no error in the imposition of penalties, as the findings of undervaluation and mis-declaration were upheld by both the adjudicating authority and the CESTAT. The penalties were deemed appropriate given the circumstances and the findings of fact.

Conclusion:

The Supreme Court dismissed the appeal, finding no merit in the appellant's arguments. The court upheld the CESTAT's decision to restore the order-in-original, which included the reassessment of the value of the imported goods and the imposition of penalties. The appeal was dismissed with no order as to costs.