9911796707
TMI Blog2002 (7) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged that the appellant submitted a revised invoice wherein the split-up value in respect of each item was shown and the average value per unit worked out to USD 149.35 i.e. Rs. 7206/- approximately. As the items imported were in the nature of consumer durables and were highly prone for under-invoicing, market enquiries were made, which revealed that the value for similar goods stood in the range of Rs. 20,000/- to Rs. 30,000/- and hence on the reasonable belief that the goods were undervalued, the appellants were called upon to have the goods valued by an independent Chartered Engineer in order to ascertain the correct value. The Chartered Engineer, made a detailed study of the video games and furnished his report, he opined the machines are about 6 years old and that the expected balance technical life was estimated to be about 15 years with timely and proper maintenance. He subsequently arrived at a revised value of Rs. 14.91 lakhs after allowing admissible deductions, whereas the declared value was Rs. 5,82,474/- CIF. Thereby the goods appeared to have been undervalued by more than twice. Since the age of the machines was found to be less than 10 years, there was no violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the provisions of Section 124 of the Act being mandatory must invariably set out the grounds for the confiscation of the goods and imposition of the penalty. Reliance was placed on the decision in Maqbool Hussain v. State of Bombay - 1983 (13) E.L.T. 1284 (S.C.) = AIR 1953 S.C. 325, K. Rama Rao v. Additional Collector of Customs, Calcutta and Another - 1983 (14) E.L.T. 2267 (Mad.) and S.A. International v. CC - 1988 (36) E.L.T. 445 (Cal.). Even if a written show cause notice is waived in terms of the proviso to Section 124, the appellant ought to have been told of the allegations against them, that the goods are liable and afforded an opportunity to represent against the confiscation and penalty. The order, does not reveal that the allegations were explained to the appellant and therefore the order suffers from a serious infirmity and is grossly irregular and illegal. Reliance was placed on the decisions in Andrew Pereira v. CC - 1986 (25) E.L.T. 753 (T) and Sachdeva Sons v. CC - 1987 (29) E.L.T. 917 (T) in support of the above contentions. (c) The appellants were not charged with the ingredients of the offence exposing them to the confiscation of the goods and pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-appellant was not given an opportunity to contest the observations made by the Chartered Engineer. (vi) The value of the goods has been arrived at based on market inquiries from traders and not manufacturers of the goods and therefore the valuation report is not of manufacturers of the goods and therefore the valuation report is not in accordance with the Rules [CC v. Kejriwal Alloy and Metal Pvt. Ltd - 2001 (130) E.L.T. 815 (T)] (i) The appellant submits that all the essential ingredients of the value of the goods imported by them have been satisfied as specified in Section 14 of the Act and therefore it was incumbent on the Department to accept the value declared in the relevant Bills of Entry. The impugned order has been passed in gross disregard to the provisions of Rules 3 and 4 of the Rules and has proceeded to determine the value of the goods in stark disregard to the said Rules. No evidence in support of the applicability of the circumstances of the aforesaid proviso has been adduced in the present proceedings as evident from the impugned order and therefore the respondent was bound to accept the value of the goods declared, held in Hartex Elastomers Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in Walia Enterprises, Amritsar v. CC - 1987 (32) E.L.T. 774 (T) in support of their contentions. (o) Section 111(m) of the Act cannot have any application in the present circumstances. Section 112 of the Act cannot be invoked to impose penalty on them as the Department has not established the mens rea or guilty mind for imposing penalty under Section 112 of the Act. It would be necessary to establish a guilty mind before imposing penalty and as held in the decision in Akbar Badruddin Jiwani v. UOI - 1990 (47) E.L.T. 161 (S.C.) and SIJ Electronics Comp Tech Pvt. Ltd. v. CC - 2001 (129) E.L.T. 528 (T-Bang). Penalty is imposed only in case of deliberate defiance of the law as held in Supreme Court in Hindustan Steel Ltd. v. State of Orissa - 1978 (2) E.L.T. (J159) (S.C.) and in SIJ Electronics Comp. Tech Pvt. Ltd. v. CC - 2001 (129) E.L.T. 528 (T-Bang). The appellant submits that the impugned order does not make any specific reference as to whether the penalty is being imposed under the provisions of clause (a) or clause (b) of Section 112 of the Act. In B. Lakshmi Chand v. Govt. of India - 1983 (12) E.L.T. 322, the Hon ble High Court of Judicature at Madras held that pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, we would reject all arguments made as regards the liability for confiscation and or penalty under Section 112 of the Customs Act in this case, by the appellants. (c) We find that this Bench of the Tribunal in the case of Shreeji Agencies reported in 2001 (136) E.L.T. 200 (Tri-Bang.) had held since the description of the goods is not found to be correct, the invoice value for transaction of off-cuts cannot be accepted. The valuation has to be done as per Valuation Rules. Following the same, when there is a mis-description of the goods found, we would hold that the Transaction Value as per the invoice produced cannot be accepted since the invoice does not depict the true and correct nature of the goods. Resort to Customs Valuation Rules has to be made in this case to determine the value. However, we find that the impugned order does not disclose, how after discarding the transaction value under Rule 4 of the Customs Valuation (Determination of Price of Imported Goods) 1988, the Rules 5, 6, 6(a), 7, 7(a) are not applicable in the facts of this case and whether the valuation has been arrived at in all these rules or under Rule 8 thereof. In fact the order is silent ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
