9911796707
TMI Blog2012 (10) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... business of import of various spices and dry fruits, and is registered with Directorate General of Foreign Trade. The petitioner is allotted the Import and Export Code No. 0791011917. The petitioner is also assessed to Income Tax and Sales Tax. The petitioner imported ten consignments of white poppy seeds of Turkey origin and filed ten Bills of Entry No. 412997 to 412999 dated 15-6-2007, 413246 to 413250 dated 19-6-2007, 413305 and 413306 dated 20-6-2007, totalling to 540 MTS and sought for clearance of goods. The unit price declared was USD 1510/MT (FOB) or after including freight and Insurance at USD 1575/MT (CIF). 3. The goods were not cleared by the Assistant Commissioner of Customs (Imports), on the ground, that the importers were attempting to import the white poppy seeds by under invoicing. 4. The petitioner sought provisional release of the goods through CHA vide its letter dated 21-6-2007. The request of the petitioner was not accepted for the reason, that contemporaneous import of similar goods was cleared at USD 2700/MT, and the goods of the petitioner were held to be under invoiced. It was decided to assess the value by resorting to the correct assessable value sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the proceedings till the order was passed by this Court. 9. The case of the petitioner is that the letters addressed to the respondent was not considered, and the impugned order was passed, assigning the value of the goods at USD 2700 PMT (CIF). The operative part of the order reads as under :- ORDER Final Assessment of the Bills of Entry 412997 to 412999/15-6-07, 413246 to 413250/19-6-07, 413305 413306/20-6-07 under which the subject cargo have been imported are to be finally assessed by adopting the USD 2700 PMT (CIF) in terms of Rule 6 of Customs Valuation Rules 1988 read with Section 14 of Customs Act, 1962, and from the final duty arising out of such finalisation, the duty already paid plus the Cash Deposit paid as per High Court s direction has to be adjusted and the remaining amount is to be demanded from the importer under Section 18 of the Customs Act, 1962. Here, as the duty on the declared value has not been paid in respect of the Bills of Entry at Sl. No. 9 10 as detailed below, after deducting the Cash Deposit shown in column 6 of the Table from the total duty worked out and shown in column 5, the balance amount has to be demanded from the importer. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie opinion to assess the value at USD 2700 PMT (GIF) were not supplied to the petitioner and in support thereof, referred to the show cause notice dated 16-8-2007. 13. This contention of the learned counsel for the petitioner deserves to be noticed to be rejected, as along with the show cause notice, the copy of the letter dated 11-6-2007 of M/s. Lakshmi Trading Company, Delhi, requesting to finalize the Bills of Entry for the Poppy Seeds imported during June 2007 at USD 2700 PMT(CIF) was enclosed. 14. It was also made clear, that other necessary documents will be shown at the time of personal hearing. The petitioner chose not to demand any document nor filed any reply, rather, made a request for adjournment of the case, on the plea, that certain order was awaited from this Court. 15. Admittedly, no stay was granted by this Court, and the order passed by this Court, directing the respondents, to adjudicate the matter within four weeks was in operation. The request made by the petitioner, therefore, was prima facie misconceived and rightly ignored by the Department to proceed with the proceedings. The stand of the petitioner only shows that a deliberate attempt was made to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been framed only in respect of imported goods. There are no rules governing the valuation of export goods. That must be done based on Section 14 itself. In the present case, the Department has charged the respondent importer alleging misdeclaration regarding the price. There is no allegation of misdeclaration in the context of the description of the goods. In the present case, the allegation is of underinvoicing. The charge of underinvoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word value is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14(1). The value to be declared in the bill of entry is the value referred to above and not merely the invoice price. 11. On a plain reading of Section 14(1) and Section 14(1-A), it envisages that the value of any goods chargeable to ad valorem duty has to be the deemed price as referred to in Section 14(1), Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of undervaluation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of underinvoicing has to be supported by evidence of prices of contemporaneous imports of like goods. 13. Section 14(1) speaks of deemed value . Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. 21. This judgment is of no help to the petitioner. The adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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