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TMI Blog2014 (6) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice during the course of adjudication and relied on 2 or 3 stray invoices where the highest sale price is shown. More than 90% of the sale were found between the range of Rs. 1800 to 2400 per roll. Therefore, on this ground, the transaction value cannot be enhanced. Enhancement of value after comparing with contemporaneous import - Held that:- here is no comparison of the quantity imported by M/s. Cosmic Manufacturing and the appellant. - To invoke Rule 5 or 6 of the CVR, 1988, the goods should be substantially of the same commercial value and of the same quantity. None of these requirements were fulfilled in the present case. - the single import made by M/s. Cosmic Manufacturing cannot be the basis of enhancement of the transaction value. Related person - financial flow back - Held that:- No where it is coming out that the appellant has transferred money against the imported goods by some other means over and above the transaction value - if it is presumed that the appellants are related person, the transaction value is not influenced being related person has contemporaneous imports made by M/s. Rajhans Automobiles, the supplies by S.N. Corporation, Japan through other i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962, on M/s. Shimnit Kiwalite Industries Ltd. (vi) Imposition of a penalty of Rs. 75,00,000/- (Rupees Seventy Five Lakhs) on Shri Nitin G. Shah, Director, M/s. Shimnit Kiwalite Industries Ltd., under Section 112(a) of the Customs Act, 1962. (vii) Imposition of a penalty of Rs. 50,00,000/- (Rupees Fifty Lakhs) on Smt. Snehal G. Shah. Director, M/s. Shimnit Kiwalite industries Ltd. under Section 112(a) the Customs Act, 1962. (viii) Imposition of a penalty of Rs. 25,00,000/- (Rupees Twenty Five Lakhs) on Shri Navin R. Shah, Director, M/s. Shimnit Kiwalite Industries Ltd. under Section 112(a) of the Customs Act, 1962. (ix) Imposition of a penalty of Rs. 10,00,000/- (Rupees Ten Lakhs) on Shri R.S. Merchant, Manager, M/s. Shimnit Kiwalite Industries Ltd., under Section 112(a)of the Customs Act, 1962. 2. During the course of argument, Shri K.K. Anand, ld. counsel submits that during the pendency of the appeal, Shri R.S. Merchant, one of the appellant has expired on 4-2-2013 on whom a penalty of Rs. 10 lakhs was imposed. Therefore penalty stands abated as same cannot be recovered from late Shri R.S. Merchant and same cannot be recovered from lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /332-333/10/CSTB/C-II, dated 28-9-2010, this Tribunal remanded the matter back for de novo adjudication with the following directions : 11. We find in this case the appellant-importer M/s. Shimnit Kiwalite Industries Ltd. has made import of Retro-Reflective Sheetings and the goods were assessed at the value declared by the appellant- importer and cleared during the period 2003 to 2005. Subsequently, investigation was conducted and an show-cause notice was issued on 17-3-2007 on the ground that the appellant-importer suppressed the material fact by not disclosing the special relationship of the supplier and the declared value was rejected on the ground that importer and exporter are related person, and on the basis of three invoices recovered from the appellant-importer s premises showing the sale of the same goods at the price of Rs. 63,800/- to Rs. 66,000/- per roll which is 45 times higher than the price at which the goods are being imported. The Revenue also relied upon the Bill of Entry filed by M/s. Cosmic Manufacturing Services (India) Pvt. Ltd. whereby same goods were imported in the year 2005 wherein the value of the goods was declared at Rs. 77,600/- per roll. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of by way of remand. The Miscellaneous Application is also accordingly disposed of. 6. The remand order of this Tribunal was not challenged by either of the sides, therefore same has attained finality. In remand proceedings, the ld. Commissioner in the remand order referred the following issue (i) Whether the declare price can be accepted as the Transaction Value. (ii) Whether M/s. SKIL were related to M/s. KIWA. (iii) Whether the documents produced by M/s. SKIL during the proceedings before the Hon ble CESTAT merit to decide the Transaction value. (iv) Whether the demand under proviso to the Section 28 of the Customs Act, 1962 can be raised when the goods have been cleared after appraisement. (v) Whether the importation firm and its and its Directors and liable for a penalty for the omissions and commissions alleged in the SCN. (vi) Whether the goods which have been cleared by the importer and are not available even before the issue of SCN can be confiscated. He thereafter passed the impugned order. Aggrieved from the said order, the appellants are before us. 7. Shri K.K. Anand, ld. counsel appeared for the appellant and submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the appellant of higher value itself shows that the sale price of the goods are so high, therefore impugned order is to be upheld. 9. Heard both sides and have given careful consideration to the submissions and case laws relied upon by them. 10. As per the remand order, this Tribunal has observed that in the show cause notice proposal for enhancement of value of declared value on the basis of imports made by the importer during the period 2003-2005 on the ground that the importer has suppressed the material fact by not disclosing the special relationship of the supplier arid the declared value was rejected on the ground that importer and foreign supplier are related persons. And that on the basis of three invoices recovered from the importer showing the sale of the impugned goods at the price of Rs. 63,800/- to Rs. 66,000/- per roll which is 45 times higher than the price at which the goods are being imported. The revenue also relied upon the bill of entry filed by M/s. Cosmic Manufacturing services who imported the goods in 2005 and declared the value of Rs. 77,600/- per roll. Further it was observed by the Tribunal that the goods imported by the appellant were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2003. It is also observed from the records that during the period of exclusive distributorship Agreement, KIWA were also selling identical goods to M/s. Rajhans Automobiles at the same rate. The imported goods were shown as Retro-Reflective Sheetings of same specification i.e. 48 x 50 yards ranging from JPY 3600 to 3800 per roll. KIWA was also supplying the same goods to the importer at the rate of JPY 3600 per roll. 13. In the impugned order the ld. Commissioner has held that although the agreement was for three years but same was required to be terminated by notice. In defence, it is submitted by the counsel that when an agreement is having a definite life time, the same shall seize to exist. It is also observed that if it is presumed that the exclusive distributorship agreement was in existence during the period of imports, but it is also on record that KIWA was selling identical goods to other parties on more or less in the same price. Therefore, it cannot be said that appellant are related persons and therefore the transaction value has been influenced due to relationship as during exclusive distributorship M/s. KIWA was selling the same goods to M/s. Rajhans Automobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore and supplying the same to the appellant. These importers have imported the Retro-Reflective Sheetings of different sizes such as 48 x 50 yds., 24 x 150 yds., etc. from S.N. Corporation, Japan, Kiwa Chemical Industry Co. Ltd., Japan, Constan Engineering Services Ltd., Singapore. They are importing these sheets on the same value at which the appellant (importer) has imported the impugned goods. The imports made by M/s. Bansal Automobile Products M/s. Rajhans Automobiles have attained finality. Therefore, same may be treated as contemporaneous imports and the contemporaneous price of the imported goods are to obtained as of M/s. Bansal Automobile Products and M/s. Rajhans Automobiles. 18. It is further observed that out of 21 consignments in question, 5 consignments of the same products were supplied by S.N. Corporation, Japan. These consignments were imported at the rate of JPY 3600 per roll. Therefore, transaction value is same on which M/s. S.N. Corporation has supplied the identical goods to other importers. As no cross-examination of the officers who has examined the goods at the time of clearance who found the description and value is correct was granted, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing the sale price between the range of Rs. 63000/- to Rs. 66000/- per roll. The ld. Commissioner has not taken into consideration all the sale invoice during the course of adjudication and relied on 2 or 3 stray invoices where the highest sale price is shown. More than 90% of the sale were found between the range of Rs. 1800 to 2400 per roll. Therefore, on this ground, the transaction value cannot be enhanced. 22. Another ground for enhancement is that goods imported by M/s. Cosmic Manufacturing in this regard it is the contention of the ld. counsel that the goods imported by M/s. Cosmic Manufacturing were not identical or similar. 23. Another evidence relied by the ld. Commissioner are the imports made by M/s. Cosmic Manufacturing as contemporaneous imports. The revenue has failed to show any evidence that the goods imported by M/s. Cosmic Manufacturing and the appellant are identical or similar anywhere. No enquiry was conducted to establish that both the goods are identical. The allegation is made on the basis of description given in the bills of entry. The samples were never cross checked or compared to arrive at the conclusion that goods are identical or similar. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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