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TMI Blog2007 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ternational. On an information that the appellant was indulging in under invoicing the value of imported goods, documents and records were retrieved from the appellant i.e. Photokina and scrutinized. On scrutiny it was noticed by the revenue authorities that the appellant had imported unexposed sensitized film in jumbo rolls and after subjecting the goods to cutting and packing, were selling the same film at a higher price in the local market. Investigations were conducted abroad and statements of various persons were recorded. The authorities also seized the goods under panchanama of 26.06.1997, which were later released on submission of bond with bank guarantee. On conclusion of investigations, a show cause notice was issued proposing as under: The show cause notice dated 30.05.2001 was issued asking that as to why- (a) the declared value should not be rejected and the same enhanced to US$ 1.80 /sq.m for M/s. Autotype product and US$1.50/Sq.m for M/s. H H Exports; (b) Differential duty of ₹ 1,21,64,904/- should not be recovered from the following noticees under the proviso to Section 28(1) of the Customs Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e distinguishable on facts as well as in law. The evidences of the manufacturer price revealed by the investigation conducted by Indian High Commission in London and the price list of the manufacturers are in conflict with the invoices raised by the manufacturer in this case. Therefore, the said case laws have no application in the subject case. In regard to judgement cited in case of M/s. Ajay Exports and M/s. Amruta Hotesl (P) Ltd., I find that an order under Section 47 of the Customs act, 1962 can be challenged or set aside if fraud or deliberate suppressions is involved as held by the Apex Court in the case of M/s. Jai Hind Shudh Vanaspati - 1996 (86) ELT 460 (SC). The reliance placed on the judgement of M/s. Dabo India Ltd. is not applicable for the subject case as the duty demanded in this case is legally due to the government and the payments made before the show cause notice are voluntary in nature. In the light of the above discussions and findings, I, (a) order that the declared value of US$ 400 per roll is to be enhanced to US$ 1.80/Sq.m. in respect of goods imported from M/s. Autotype Internationa and US$ 1.50 Sq.m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the seized goods is ex-facie wrong as there was no allegation as to any kind of mis-declaration. It was submitted that the goods, which were confiscated, were seized and again the very same goods were held to be liable for confiscation on the ground that the value has been mis-declared. It was submitted that the enhancement of value by the adjudicating authority is not correct as the reliance placed on the investigation made abroad with the help of High commission of India does not prove any under invoicing, on the contrary the said report clearly indicate that the supplier Autotype International has policy of producing goods country specific. It was submitted the goods, which were imported by the appellant, were not mentioned in the price lists annexed with the report. It is submitted that the price list of the supplier was for the pack quantities and the appellant had imported jumbo rolls. It is his submission that the reliance placed on the invoice by the adjudicating authority is for the pack quantity and not for the same goods imported by the appellants. It is his submission that the adjudicating authority has wrongly rejected the transaction value without any basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (x) Commr. Of Cus. Bangalore Vs. Motorola India Pvt. Ltd. 5. The learned SDR on the other hand submits that the appellant has not made out a case in their favor. It is his submission that the proprietor in his statement-dated 1.8.96 had admitted that there was under valuation of the imported goods. It is his submission that the statement of the proprietor before the authorities is a confession and had given the details in the statement, which are, only known to him. It is submitted that the so-called retraction of the statement is not at all retraction, as the letter of retraction-dated 15.10.1997, clearly informs the authorities that the proprietor has retracted the statement-dated 6.10.1997. It is his submission that the retraction, which is belated, is of no help or support to the appellant. As regards valuation it is his submission that the investigating authorities have brought on record that the appellant had imported the goods in jumbo rolls valued as per roll, while the supplier always invoiced the goods as per/sq.mtr. It is his submission that the appropriation of the amount seized and deposited by the appellant is correct as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has confessed as under : I accept the calculation above shows that the price of fixed tax should be about 2.76 US$ per cm2. However, I state that actual price of HNN item is US$ 1.80 per cm2 for supply to India from Singhapur by M/s. Autotype India Ltd. The various invoices raised for this item showed the price a US$ 0.80 per sq. m. and which was not reflecting the actual cost. The price was shown like this because of understanding between my co. and M/s.Autotype. As per this tacit understanding between us M/s Autotype would issue an invoice for US$ 0.80 per sq. cm2 only and remaining US$ per cm2 was not declared to save custom duty. Similarly although the calculation about for Chromacine shows the cost to be about US$ 1.91 per sq. m. but I hereby state that the actual cost of this item is US$ 1.5 only. The price shown on invoices was only 0.80 $ per cm2 for saving custom duty . It can be seen from the above-reproduced portion of the statement that the proprietor of appellant's firm had categorically admitted that the billing of the invoices in unit measurement of jumbo rolls was done with a tacit understanding to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in lieu of confiscation and the subsequent redemption fine. We find that the consignments imported under the very same bills of entries were seized by the authorities and later released provisionally on execution of bond. The adjudicating authority has imposed a separate redemption fine of Rs. Ten lakhs on this misdemeanor. We are of the considered view that penalty in lieu of redemption fine and redemption fine cannot be imposed on the very same goods twice over as the physical seizure of the goods were for mis-declaration only. If that be so, the penalty imposed in lieu of redemption fine is liable to be set aside and we do so. As regards the redemption fine imposed on the seized goods and later released provisionally, the amount of fine imposed is very excessive. To meet the ends of justice, the redemption fine imposed is reduced to Rs.Two lakhs from Rs. Ten lakhs. 9. As regards the penalty imposed on the firm Photokina we find that it is totally dis-proportionate to the duty confirmed. As such the penalty imposed on the appellant firm is reduced to Rs. Eight lakhs Seventy Five Thousand only. We find that the adjudicating authority has directed to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be levied or collected except by authority of law. There can be no dispute that the duty levied by the customs authorities is a tax, and therefore, can only be levied by authority of law. Section 12 of the Customs act, 1962 (Act 50 of 1962), other law for the time being in force, on goods imported provides that duets of customs shall be levied at such rates as may be specified under the Indian Tariff Act, 1934, or any into, or exported from India. It is not disputed that the goods cleared by the petitioners on 29.7.1963, are liable to duty and can be cleared after payment of duty. But by some mistake, the duty had not been levied on the goods. Section 28(i) of the Act provides that when any duty has not been levied, the proper office may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied, requiring him to show cause hwy he should not pay the amount specified in the notice. The expression 'relevant date , according to section 28(3) is the date on which the proper officer makes an order for the clearance of the goods. We are not concerned with the proviso to section 28(1) of the Act. Section 28(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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