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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 ..... as already been paid the differential duty of Rs. 4,90,93,914/- (Rupees Four Crores, Ninety lakhs Ninety Three Thousand and Fourteen only) need be paid by M/s. Shimnit Kiwalite Industries Ltd. (Currently known as M/s. Shimnit Kiwalite Industries Private Limited as declared by them before the Hon'ble CESTAT). (iii) The impugned goods revalued at Rs. 12,34,60,830.11/- (Rupees Twelve Crore Thirty Four Lakhs Sixty Thousand Eight Hundred Thirty and Paise Eleven only) are found liable for confiscation under Section 111(m) of the Customs Act, 1962, however since the same are not available for confiscation, taken into consideration while imposing a penalty. (iv) Interest in terms of Section 28AB of the Customs Act, 1962, should be paid by the importer M/s. Shimnit Kiwalite Industries Ltd. on the differential duty of Rs. 4,90,93,914/- (Rupees Four Crore Ninety Lakhs Ninety Three Thousand Nine Hundred Fourteen only). (v) Imposition of the mandatory penalty of Rs. 4,90,93,914/- (Rupees Four Crore Ninety Lakhs Ninety Three Thousand Nine Hundred Fourteen) plus applicable interest under Section 114A of the Customs Act, 1962, on M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ Rs. 63,000/- to Rs. 66,000/- per roll whereas the importer declared the CIF value of the goods at the time of import at Rs. 1,427/- per roll. The Revenue also taken into consideration the imports made by M/s. Cosmic Manufacturing Services (India) Pvt. Ltd. whereby the importer has declared the CIF value at Rs. 77,600/- to Rs. 78,700/-. In view of this, after considering the reply filed by the appellant, the adjudicating authority rejected the value declared by the appellant and enhanced the value on the basis of the import made by M/s. Cosmic Manufacturing Services (India) Pvt. Ltd. and after taking into consideration the sale price of the importer, the adjudicating authority confirmed the demand of customs duty of Rs. 5,00,27,042/- and imposed penalty of equal amount on importer-firm. The adjudicating authority has not imposed any penalty on the co-noticees i.e. Directors and Manager of importer-firm. The importer filed appeal against confiscation, demand and imposition of penalty on the firm whereas the Revenue filed appeal against the same impugned order for not imposing penalty on Directors and Manager of the importer-firm. 5. The matter came up before this Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the enquiry report was relied upon in the show-cause notice as well as in the adjudication order. The appellant has asked for a copy of the enquiry report but the same has not been supplied to the appellant-importer. We, further, find that the request for cross-examination of the customs officials was also not taken into consideration. In the appeal filed by Revenue we find that the adjudicating authority in the impugned order held that Directors and Manager are liable for penalty but no penalty was imposed and Revenue is seeking remand in the appeal. Therefore, we find it appropriate that the whole matter be reconsidered by the adjudicating authority in respect of all aspects now raised by the appellant as well as by the Revenue in the present appeals. 14. The impugned order is set aside and the matter is remanded to the adjudicating authority for de novo adjudication. The adjudicating authority will decide after taking into consideration the plea raised by the appellant as well as by the Revenue and after affording a reasonable opportunity of hearing to the appellants. The adjudicating authority shall also go into the relevancy of the evidence now produced by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the additional evidence arid subsequently before the Commissioner clearly show that the transaction value was correctly declared (g) All the evidences relied upon by the department clearly stand demolished as would be evidently clear by the findings of the Commissioner; goods imported by Cosmic Marketing Services India (P) Ltd. were not identical or similar (h) It is wholly incorrect that crossed cheques were issued to a non-existent firm M/s. Bansal Automobiles (i) Transaction value cannot be rejected merely on the ground of late remittances (j) Non-confiscation of live consignment itself is sufficient to prove that there was no mis-declaration of description or value (k) No justification to enhance and re-determine the value of three consignments listed at serial Nos. 4, 5, and 12 of the chart (l) Demand is barred by time Therefore penalties imposed on the appellants are not sustainable. 8. On the other hand, Shri P.S. Sodhi, ld. AR supported the impugned order and reiterated the same. He further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go into the relevancy of the evidence produced by the appellant before this Tribunal during the course of remand proceedings. 11. From the above, following issue emerges : (a) Whether the transaction value can be rejected as same has been influenced being related person or not. (b) Whether the import made by M/s. Cosmic Manufacturing can be considered as contemporaneous imports during the impugned period. (c) Whether the imports made from S.N. Corporation, Japan can be relied for enhancement of the transaction value. (d) Whether the goods supplied by KIWA to M/s. Rajhans Automobiles declared the same value can be considered or not can be considered as contemporaneous import. 12. It is the contention of the ld. counsel that the bills of entry has attained finality and same were never reviewed or challenged by the department. It is the case where bills of entry were assessed but later on during the course of investigation, it was found that the appellant are related person to supplier as per Rule 2(2)(ii) read with Explanation II. We find that in this case SKIL was having exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s'. 15. In the impugned order, the Commissioner has not questioned the examination report done at the time of clearance of the goods. Therefore, it cannot be said that there were mis-declaration about the nature of goods or of valuation. No cross-examination of the Custom officer, who examined the goods at the time of importation, was granted. In the case of CC v. Prodelin India (P) Ltd., 2006 (202) E.L.T. 13. The Hon'ble Apex Court has held that even in a case of related person the transaction value has to be accepted provided the examination of circumstances of sale of their imported goods indicate that relationship did not influence the price and importer demonstrates that the declared value of the goods being valued, closely approximately to the value of the identical goods and similar goods. We also find that the appellant has filed the sale invoices affected by them of the impugned goods. More than 90% of the goods are sold between the range of Rs. 1800 to Rs. 2400 per roll and same has been accepted by the sales tax authorities as well as the income tax authorities and the assessment have been made on the sale price indicated in the invoice. 16. We further found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered in the books of accounts and sale invoice were also entered in the books of accounts and sales tax authorities and income tax authorities have assessed the sale/income on the strength of the sale price shown by the appellant in the sale invoices. In these circumstances, the sales invoices produced by the applicant cannot be discarded but the same are reliable evidence to determine the value of imported goods. Therefore, the enhancement of transaction value on the ground of that importer is related to the supplier is not sustainable as price is not influenced being related person. 20. We further find that during the same period the supplier has also supplied the good to M/s. Rajhans Automobiles and S.N. Corporation, Japan as also supplied the same goods to the appellant importer on the same price during the relevant period. 21. In the show cause notice in earlier adjudication, the adjudicating authority placed reliance on the report of the Japan Custom authorities the copy of same was not provided to the appellant and in remand proceedings Tribunal has directed to provide the copy of the report of Japan Custom authorities but the ld. Commissioner refused to provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reflective Sheetings' which are of various qualities, specification and grades. In M/s. Nippon Carbide Industries Co. Inc., Japan is manufacturing sheets which are of various types. The SKIL brought on record a detailed technical literature issued by M/s. Nippon Carbide Industries Co. Inc., Japan from whom M/s. Cosmic Marketing Services India Pvt. Ltd. had imported Retro-Reflective Sheetings. From the said literature, it is clear that that the Retro-Reflective Sheetings are of various grades such as engineering grades, super engineering grades etc. Each of its grades with its specification was vividly explained in the said literature issued by M/s. Nippon Carbide Industries Co. Inc., Japan. Therefore, M/s. Cosmic Marketing Services India Pvt. Ltd. may have imported Retro-Reflective Sheetings which was of micro prismatic grades having the highest retro reflectivity characteristics. Therefore the single import made by M/s. Cosmic Manufacturing cannot be the basis of enhancement of the transaction value. 25. We further find that one of the allegations is that the appellant were issuing cross-cheque in the name of M/s. Bansal Automobile Products who is discounting the cheques. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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