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TMI Blog2018 (11) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1988 does accord flexibility to vary the declared price of contemporaneous imports to adjust for slight variations. It appears that the adjudicating authority has, accordingly, adopted value which coincides with the price declared in the imports effected by the group concern subsequent to the import of the impugned goods - there are no reasons to discard the enhanced value adopted by the adjudicating authority. Redemption fine - impugned goods not available - Held that:- It is clear from the decision of the Hon ble High Court of Bombay in re Finesse Creation Inc [2009 (8) TMI 115 - BOMBAY HIGH COURT] that redemption fine cannot be imposed on goods that are not available for taking possession of upon confiscation under section 111 of Customs Act, 1962 - There is no dispute that the impugned goods are not available, redemption fine cannot be imposed. There are two discrete processes leading to recovery of differential duty. Recourse to enhancement of value does not, ipso facto, arise from mis-declaration of the value in the bill of entry but from the particular scheme of assessment. Accordingly, invoking of section 111 of Customs Act, 1962 must rest upon evidences other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer. Citing the decision of the Hon ble Supreme Court in Eicher Tractors Ltd v. Commissioner of Customs, Mumbai [2000 (122) ELT 321 (SC)], Commissioner of Customs, Mumbai v. JD Orgochem Ltd [2008 (226) ELT 9 (SC)], Basant Industries v. Additional Collector of Customs, Bombay [1996 (81) ELT 195 (SC)] and Rajkumar Knitting Mills (P) Ltd v. Collector of Customs, Bombay [1998 (98) ELT 292 (SC)], he contends that the adjudicating authority failed to comply with the necessary pre-requisites for discarding the transaction value. He further contends that the adjudicating authority has placed undue reliance on the decision of the Hon ble High Court of Madras in Visteon Automotive Systems India Ltd v. CESTAT, Chennai [2018 (9) GSTL 142 (Mad)] related to entirely different circumstances and despite decision of the Hon ble High Court of Bombay in Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc [2009 (248) ELT 122 (Bom)], to impose redemption fine on goods that were unavailable for confiscation. He also submits that the imposition of penalty on the appellant and the two directors of the appellant-Company was inappropriate as the dispute on valuation did not arise from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. The cited decisions, noting the prerequisites for rejection of declared value, place the onus of justification on the assessing authority. With the changes in the Rules for valuation supra, the altered scope has been elaborately explained by the Tribunal in Commissioner of Customs v. HM Leisure [2006 ECR 542 Tri Bangalore] thus 6. We agree with the Revenue that even if the circumstances particularised in Rule 4(2) are not there, the Transaction Value can be rejected by the Revenue authorities in terms of Rule 10A. The Apex Court s decision in the Eicher Tractors case relates to imports effected in 1993 but, Rule 10A came into effect only in the year 1998. Therefore, in respect of imports which are effected after the introduction of Rule 10A, the Revenue authorities can press into service Rule 10A in the absence of circumstances mentioned in Rule 4(2). We reproduce Rule 10A. 10A. Rejection of declared value. - (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce an invoice from the manufacturer. Considering all these aspects, the rejection of declared value stands upheld. 5. The responsibility of the assessing officer does not cease with rejection of declared value and, in accordance with the sequential hierarchy of valuation prescribed for resort to Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, revised assessable value was to be arrived at. Failure to do so would render rejection under rule 10 A to be an exercise in futility. The adjudicating authority has placed reliance upon the declaration in imports effected by a group concern to be the price at which identical goods were imported for determination of value under rule 5 of the said Rules. It is the contention of Learned Counsel that such revision of assessable value cannot be based on imports effected after the date of impugned imports as that would fail the test of being contemporaneous. We may have been inclined to agree with this contention had it not been for the information furnished by the overseas manufacturer indicating the price range at which the goods are sold. Rule 5 of Customs Valuation (Determination of Price of Imported Goods) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of modes of valuation in the Rules has the approval of law. It would, therefore, appear that there are two discrete processes leading to recovery of differential duty. Recourse to enhancement of value does not, ipso facto, arise from mis-declaration of the value in the bill of entry but from the particular scheme of assessment. Accordingly, invoking of section 111 of Customs Act, 1962 must rest upon evidences other than the mere fact of enhancement of assessable value. The oft-repeated dictum that mens rea is not an essential requirement for proceeding with confiscation, a standard handed down from the pre--rule 10A era, does not any longer justify confiscation merely because of enhancement of assessable value. That the sovereign legislature considered it necessary to inserting section 114A in Customs Act, 1962 in 1996 makes it abundantly clear that it was never been intended for section 111 of Customs Act, 1962 to be invoked whenever recovery of duty was ordered. Evidence of mis-declaration should be made available to the noticee before doing so. Accordingly, in the present circumstances the confiscation under section 111 of Customs Act, 1962 lacks sanction of law. With the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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