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TMI Blog2016 (2) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments to six importers on High Seas Sales basis. The Customs duty was paid on the assessable value which was determined by the importers on the basis of CIF value + 2%. The goods were cleared from Customs charge on payment of Customs duty. Subsequently, DRI Officers found that M/s ACCIL had raised debit notes in respect of the said consignments and have collected the debit note amount from four of the importers. It was, therefore contended that the assessable value should be the value declared by the importer + the value of the debit note. Show Cause Notices were issued and the matter was adjudicated vide the impugned order by the Commissioner of Customs, Ahmedabad. Aggrieved by the said impugned order, all the above importers are before us. 3. Heard the learned Counsels and Consultants appearing for the appellants, and the learned Authorised Representative for the Revenue. 4. Shri Anand Mishra, learned Counsel appearing for M/s ACCIL submits that the goods were imported during the period July/August, 2006 and therefore, the old Section 14 of the Customs Act would apply. He takes us through the said provisions and submits that the assessable value is a deemed value which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. In respect of M/s Hind Prakash International Trading P. Ltd, the learned Consultant submits that they had not received the debit note and they came to know about the debit note only when the DRI officers contacted them during investigation. He also points out that the differential duty on account of the debit note was paid by the M/s ACCIL in the case of M/s Hind Prakash International Trading P. Ltd. In the case of M/s Manish Chemicals, the Consultant submits that in this case also, the goods were cleared under advance licence (DEEC). He also submits that the Adjudicating authority has not given any finding in the impugned order in respect of M/s Manish Chemicals. 6. The learned Advocate Shri Paritosh Gupta appears for M/s Loxim Industries Pvt. Ltd, and M/s Monarch Dyestuff Industries Ltd. The learned Advocate adopted the arguments of the other appellants. In regard to M/s Loxim Industries Pvt. Ltd, he submits that the clearance was under advance authorisation licence. In the case of M/s Monarch Dyestuff Industries Ltd, he submits that they had not received the debit note nor they have paid the amount mentioned in the debit note to M/s ACCIL. However, on subsequent demand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r value, and the differential amounts were recovered by M/s ACCIL by way of debit notes. Therefore, as per law, the Customs duty should be paid on the enhanced value including the debit note value. He drew the attention of the Bench to the findings of the Adjudicating authority in the instant case. He also submitted that M/s ACCIL had suppressed the fact of issuance of debit note and therefore, the extended period is invocable. He also disputed the contention of the appellants regarding bonafide belief. He submits that the Circular No.32/2004-Cus, dt.11.05.2004 says that in the case of High Seas Sales, the transaction value will be the price paid by the last buyer. He also relied upon on the decision of Hon ble Apex Court in the case of M/s Hyderabad Industries Ltd Vs UOI 2000 (115) ELT 593 (S.C.) 10. As regards the balances in the advance licenses, the learned A.R. submitted that the Appellants had not come forward at the time of investigation to remit the differential duty demanded by way of debiting the advance licences and they had voluntarily paid the differential duty by cash and therefore, he contends that the findings of the Adjudicating authority that the said plea cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable in the instant matter. In the cases of M/s Rajkumar Knitting Mills (P) Ltd (supra), and M/s Bayer Corp. Science Ltd & Ors. (supra), there is no High Seas Sales of the goods involved. In the case of International Steel Corporation also, there is no High Seas Sales. We find that on the contrary, the decision of Hon ble Apex Court in the case of M/s Hyderabad Industries Ltd (supra) is applicable to the facts and circumstances of the present matter. The Hon'ble Apex Court in the said case held that it is not the value or the price at which the importers (MMTC) procure the goods from their suppliers in foreign country, but the price on which MMTC sell the goods to Indian buyers on High Seas Sales basis, which would be relevant to arrive at the assessable value. 14. As regards the contention of the bonafide belief claimed by the appellants, a perusal of the Board s Circular No.32/2004, dt.11.05.2004, reveals that such a bonafide belief cannot arise from the contents of said circular. For better clarity, Para 2 of the said circular is reproduced below:- "2. The matter has been examined taking into account the Advisory Opinion 14.1 of the GATT. Valuation Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is rightly invoked in the instant case. 16. As regards the redemption fine, we find force in the arguments of the learned Counsel/Consultants that the goods have been cleared from Customs charge and not available for confiscation, and therefore, redemption fine would not be imposable on them. Therefore, we set aside the redemption fine imposed on all the appellants. 17. As regards penalty, we do find mitigating factors as discussed in earlier paragraphs, and hence the penalties on the appellants need to be reduced. We find that a penalty of Rs. 20 lakhs has been imposed on M/s ACCIL and also a separate penalty of Rs. 20 lakhs has been imposed on Shri Mahesh Agarwal, Managing Director of M/s ACCIL. We hereby reduce the said penalties to Rs. 5 lakhs (Rupees Five Lakhs only) on M/s ACCIL and Rs. 2 lakhs (Rupees Two lakhs only) on Shri Mahesh Agarwal, Managing Director of M/s ACCIL. 18. We find that the other appellants have been imposed penalties under Section 114A read with Section 112(a) of the Customs Act, 1962. We uphold the said penalties equivalent to duty imposed on the appellants under Section 114A. However, we find that the option to pay 25% of the penalty has not been e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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