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TMI Blog2010 (4) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence otherwise noted by him – Held that: - assessable value determined by the Commissioner in either of the cases is upheld, and consequently, the demands of differential duty is sustained - misdeclaration of value by the assessee, a fact tacitly admitted by them - the goods were not available for confiscation, any fine was not liable to be imposed - demands of duty and penalties in all these cases are upheld, while the redemption fine is set aside. - C/981/1999-Mum. and C/239-240/2002-Mum. - A/131-133/2010-WZB/C-II/CSTB - Dated:- 28-4-2010 - S/Shri P.G. Chacko, Member (J) and S.K. Gaule, Member (T) REPRESENTED BY: Ms. Shilpa Balani, Advocate, for the Appellant. S/Shri P.K. Aganval, Jt. CDR and T. Tiju, SDR, for the Respondent. [Order per: P.G. Chacko, Member (J)]. - M/s. Patel Enterprises, a proprietary concern of one Shri Rahul Ramanbhai Patel, had imported Air Conditioners in April, 1997. They filed Bill of Entry dated 2-4-97 for clearance of 50 Air Conditioners of 0.75 Ton each imported from Dubai, the value of which was declared as US $ 220 per piece. Again, on 21-4-97, they filed a B/E for clearance of 48 Air Conditioners of 1.5 Tons each from Singapore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able value of the Air Conditioners to Rs. 18,492.38 per piece and, accordingly, demanded differential duty of Rs. 88,986.07 from the assessee under Section 28 of the Customs Act. As in the earlier case, penalty equal to duty was imposed under Section 114A of the Act. The goods were held to be liable to confiscation under Section 111(m) of the Act and a fine of Rs. One lakh was imposed in lieu thereof. Appeal No. C239/02 is against this decision of the Commissioner. Shri Rahul R. Patel (proprietor) filed Appeal No. C/240/02 against the penalty imposed on him. 3. After examining the records and hearing both sides, we note that the show-cause notices were issued on the basis of two statements given by the importer under Sec. 108 of the Customs Act, as also on the basis of certain contemporaneous quotations. In his statement dated 7-8-97, Shri Rahul R. Patel stated that one Shri Pradeep arranged for the supply of the Air Conditioners and that Shri Pradeep had informed him that he would raise invoice at the rate of US $ 220 per piece but payment should be made at the rate of US $ 260 per piece in respect of the Air Conditioners of 0.75 Ton capacity. Shri Rahul R. Patel further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs initiated under Section 28 of the Customs Act were not legally permissible. The assessee, in other words, termed the said proceedings as read judication of the same matter. It was also claimed that the first statement was not voluntary or true as it was allegedly obtained by the officers of DRI in coercive circumstances. The reliance placed on quotations of prices for Air Conditioners was also objected by the assessee. It was in adjudication of this dispute that the Commissioner passed the impugned orders. 4. From the submissions made before us, it appears that mainly two is sues arise for consideration. Firstly, was it open to the department to issue show- cause notice under Section 28 of the Act for recovery of any additional amount of duty without attempting any revision of the assessment by resorting to the proc ess of law provided under Section 130 of the Act. According to the ld. Counsel, it was not open to the department to invoke Section 28 inasmuch as the assessment was not challenged by the due process of law. The ld. Counsel has relied on two decisions of this Tribunal viz. Hitaishi Fine Kraft Indus. Pvt Ltd. v. Commr. of Cus toms: West Bengal [2002 (148) E.L.T. 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its for the issuance of the show-cause thereunder commencing from the "relevant date"; "relevant date" is defined by sub-section (3) of Section 28 for the purpose of Section 28 to be the date on which the order for clearance of the goods has been made in a case where duty has not been levied; which is to say that the date upon which the permissible period begins to run is the date of the order under Section 47. The High Court was, therefore, in error in coming to the conclusion that no show-cause notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130." 6. We further note that, in the case of Venus Enterprises (supra), the assessee had filed 11 Bills of Entry for clearance of computer parts in 1995-96. The declared value was accepted in respect of some of these Bills of Entry, while in respect of other Bills of Entry, the value was enhanced. After the assessment, consignments were allowed to be cleared under Section 47. However, on subsequent investigations by the DRI, certain incriminating documents were recovered from the premises of the importer On the basis of the results of the investigations, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71 (Tri.-Chennai)]. On the other hand, in the cases of Hitaishi Fine Kraft Indus. Pvt. Ltd. (supra) and Shininit Machine Tools Equipment Ltd. (supra), the decision of the Supreme Court in lain Shudh Vanaspati Ltd. (supra) was not considered. 9. In the result, we reject the plea made by the Id. Counsel that it was not open to the department to reopen the assessment under Sec. 28 of the Customs Act, It is also significant to note that, in another case [Collector of Central Excise, Bhubaneshwar v. Re-rolling Mills - 1997 (94) E.L.T. 8 (S.C.)] cited by the ld. Jt. CDR, the Hon'ble Supreme Court followed the ratio of lain Shudh Vanaspati (supra) in a Central Excise case, after noting that Section 28 of the Customs Act was pari materia with Section 11A of the Central Excise Act. 10. In the result, we hold that the proceedings initiated by the department under Section 28 of the Customs Act for recovery of differential duty from the assessee cannot be faulted on the ground that the assessments were not challenged or sought to be revised under Section 130 of the Act. We have also noted that, in the case of Venus Enterprises also, there was repeated enhancement of assessable value in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uotations, both sides extensively argued on the strength of case law. We note that, these quotations were not the sole evidence for the Commissioner to enhance the assessable value of the goods. Even without reference to the quotations, the Commissioner could have arrived at the same findings against the assessee on the basis of the formidable evidence otherwise noted by him. 14. In the result, the assessable value determined by the Commissioner in either of the cases is upheld, and consequently, the demands of differential duty is sustained. Both the show-cause notices had invoked the extended period of limitation on the ground of misdeclaration of value. We have already found misdeclaration of value by the assessee, a fact tacitly admitted by them. The grounds for a penalty under Section 114A of the Customs Act are pari materia with those for invocation of the extended period of limitation under the proviso to Section 28(1) of the Act. In other words, the penalty under Section 114A of the Act is also to be sustained. 15. In the order impugned in Appeal No. C/239/02, the ld. Commissioner imposed redemption fine of Rs. One lakh under Section 125 of the Act in lieu of confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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