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TMI Blog2013 (1) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the appellants have suppressed value of goods imported from another country. There is no reason to adopt a different standard for the appellant in cases where clear evidence of remittance of extra consideration is not adduced by Revenue. Therefore, imports from countries other than USA the benefit of doubt should go to the appellants. In favour of assessee Their contention that they should not be asked to pay any additional Countervailing duty or consequent SAD element, is to be accepted. However, the plea that Countervailing duty and SAD initially paid should be adjusted against shortfall in other types of customs duty paid at the time of import is not maintainable. There is a mechanism for getting relief of CVD and SAD paid through Cenvat credit. Therefore we not able to agree with the contention that the excess CVD and SAD paid should be adjusted against Customs duty short paid at the time of import. In favour of revenue We uphold the demand for differential customs duty (other than CVD and consequent difference in SAD) on account of value difference demanded in respect of consignments imported from USA. The demand for differential duties on account of imports fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Shri Baljinder Singh proprietor of M/s. Dee Kay Exports on whom penalty has been imposed by the adjudicating authority in the case of these imports. 5. In the case of Appeal No. C/224/2008 goods imported under eleven Bills of Entries filed during 24-9-2002 to 24-10-2002 are under dispute. Out of these, seven consignments were from Thailand and one each from USA, Canada, Saudi Arabia and UAE. In the case of Appeal No. 225/2008, 11 Bill of Entries for the period September 2002 to October 2002 were examined. Out of these 11 imports, 7 imports were from Thailand one each from USA, Canada, Saudi Arabia and UAE. In these cases, Revenue was not able to unearth the supplementary invoices under which extra consideration were remitted abroad. However in the case of the Bill of Entry relating to import from USA there is an admission by Shri Baljinder Singh, partner that the actual value of the goods in this case was 515 US$ per MT but they declared the value to be 380 US$ per MT. In this case there is also an issue of mis-declaration of quantity to be 19.23 MT whereas the weight as per insurance policy was 20 MTs. The difference in quantity was also accepted by Shri Baljinder Singh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be asked to pay any differential duty on the said consignments. They submit that have already paid excess duty, even if the increased prices are taken into consideration. 11. The appellants also contest that since the assessments were finalized the Revenue could not have issued a Show Cause Notice later, alleging under valuation. They rely on the decision of the Apex Court in the case of Nizam Sugar Factory v. CCE - 2008 (9) S.T.R. 314 (S.C.) = 2006 (197) E.L.T. 465 (S.C.). 12. The ld. Counsel contests on behalf of Shri Baljinder Singh that he is a partner of the firm which imported the goods and there cannot be a separate penalty on the partner once penalty is imposed on the firm. 13. Opposing the prayer of the appellant, ld. AR for Revenue submits that undervaluation of goods imported from USA is proved in view of the fact that invoices showing additional remittance were unearthed by Revenue. During the investigation stage, the appellants had also admitted to such undervaluation and therefore the undervaluation of goods imported from USA is clearly proved and such undervaluation is not contested by the appellants now. He points out that the appellants had already paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at these goods do not have any characteristics which contributes to differential value depending on the country of origin cannot be accepted for the reason that the value of these goods depends on the percentage of zinc contents in this material. Revenue has not adduced any evidence to show that the zinc contents in consignments received from different countries were the same. Basically the items in question are goods of which quality can vary and therefore it is difficult to agree to any addition in value, based on the fact that the appellants have suppressed value of goods imported from another country. Further we note that the entire matter arose from the fact that the customs authorities at Mumbai adopted a practice of assessing such goods at a standard value of US $ 380 per MT irrespective of the transaction value and most of the other importers got away with such declaration. That being the case there is no reason to adopt a different standard for the appellant in cases where clear evidence of remittance of extra consideration is not adduced by Revenue. Therefore we are of the view that for imports from countries other than USA the benefit of doubt should go to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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