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TMI Blog2019 (4) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... and after examination concluded that after assembly, fully functional calculators came into existence. Appeal dismissed - decided against appellant. - Customs Appeal No. 50426 of 2018 - FINAL ORDER No. 50425/2019 - Dated:- 23-1-2019 - Mr. Justice Dilip Gupta, Member and Mr. C L Mahar, Member Shri Priyanshu Uppadhyaya, Advocate for the Appellants Shri Sunil Kumar, AR for the Respondent Per: Mr. Justice Dilip Gupta: This appeal has been filed to assail that part of the order dated 27 December 2016 passed by Commissioner of Customs (Appeals) by which the request made by the appellant to re-export parts of calculators found in Semi Knocked Down (herein after referred to as SKD) condition was rejected. 2. It transpires from the records that appellant had imported consignment of goods including calculators, regzine cover for calculators, button for calculators, plastic body for calculators, mounted PCB, paper box for calculators through Bill of Entry dated 11 January, 2016 and declared the value of the goods in the invoice to be USD 12386.19. The declared assessable value was ₹ 13,38,318.75 and duty assessed on the goods was mentioned as ₹ 11,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roprietor of the appellant firm also gave a statement under section 108 of the Customs Act, 1962 that he did not desire that any show cause notice be issued or personal hearing to be granted and insisted that the case may be decided at the earliest. 6. The appellant on 13 April, 2016 requested the department for re-export of the calculators in SKD condition as it was not in a position to pay the Anti-Dumping Duty. The Adjudication Authority rejected the request of the appellant for re-export for the reason that there was clear and deliberate mis-declaration of description, value and quantity of goods imported. The Adjudicating Authority observed that the appellants were well aware that calculators attracted Anti-Dumping Duty since it had declared some quantity of calculators for which it assessed Anti-Dumping Duty. The Adjudicating Authority found that the appellant had brought huge quantity of calculators by splitting them in parts with a view to evade payment of duty since a simple assembling of the parts resulted in a fully functional calculator without the use of any tool/ equipment. The Adjudicating Authority also noted that the parts were assembled in the presence of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time watch maker as could be made out from his Income Tax Return which shows an Income of ₹ 2.50 lakhs per annum in the past. It is incomprehensible that a man of meager means could import a consignment worth ₹ 67 lakh having market value of over 1.50 crores that too on credit basis. Further, there is no urgency from the supplier for his dues, which raises doubts about the bona fides of the importer and consignments imported by him. In view of foregoing discussions, I find that the value declared in the Bill of Entry filed for Home Consumption does not represent the correct value of the imported goods and the same is thus, liable to be rejected under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and the same is required to be re-determined as per Rule 7 of the Rules ibid. I also find that the declaration of quantity and description of goods in the Bill of Entry No. 3871379 dated 11.01.2016 was not correct. The quantity of some goods found in excess in comparison to the declared quantity and some goods are also not declared in the Bill of Entry. Therefore, all the goods contained in Container No. NYKU0798672 covered under Bill o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the above said Bill of Entry is adjusted against the said demanded amount and the differential amount of ₹ 14,66,962/- is required to be paid forthwith under Section 28(1) of the Customs Act, 1962 along with interest at the appropriate rate before clearance of the goods. (iii) I also confirm the demand of differential anti-dumping duty of ₹ 43,03,715/- on the calculators imported as calculator parts under the subject consignment in accordance with the notification no. 24/2015-Cus (ADD) dated 29.05.2015. (iv) I also order for confiscation of the goods totally valued at ₹ 61,75,750/- under Section 111 of the Customs Act, 1962, however, I give an option to the importer to redeem the goods on payment of appropriate customs duty Redemption Fine of ₹ 12 lakhs (Rupees Twelve lakhs only) under Section 125 (1) of the Customs Act, 1962. (v) I impose a penalty of ₹ 4 lakh (Rupees Four lakh only) on the importer M/s. Jai Shiv Trading Co. under Section 112 (a) and a penalty of ₹ 4 lakh (Rupees Four lakh only) under 114AA of the Customs Act, 1962 for its various acts of omission and which have rendered the goods liable to confiscation. I refrain fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article such as CFL is imported in CKD / SKD condition, its classification for purpose of assessment would be done as complete or finished article in terms of Rule 2(a) of the General Interpretation Rules. Accordingly, when antidumping duty is attracted on any article then it is also to be levied if the said article is imported in CKD / SKD condition either together in one lot or part shipments. All pending assessments, if any, may be finalized accordingly. Board s Circular is squarely applicable to the impugned case of import of parts of calculators which when assembled together, make a complete, functional calculator. Thus parts of calculators imported in CKD / SKD conditions will be treated as a complete, finished article for the purpose of assessment as per Rule 2a) ibid. Accordingly, the same attracts the levy of anti-dumping duty @ 1.22 USD per piece as per Notification No. 24/2015-Cus (ADD) dated 29.05.2015, which works out to ₹ 51,10,147/- and after adjusting the amount already paid of ₹ 8,06,432/-, the differential ADD is now worked out to ₹ 43,03,715/-. Since the levy of ADD is per piece, the issue of valuation on the basis of best judgment for the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962 separately. 12. Further, the Appellant herein shall be given release of the said confiscated goods to the extent of option being given subject to the payment of tax and dues along with Redemption Fine and penalty as held above. 10. It is against this order dated 27 December 2016 that both the appellant and the Department filed appeals before this Tribunal. The appeal filed by the Department in so far as it related to the value of the goods, was dismissed by the Tribunal by order dated 4 September, 2017. 11. Learned Counsel for the appellant submitted that there was no good reason as to why the request of the appellant for re-export of the calculators in SKD condition should have been rejected by the Adjudicating Authority. It is his submission that if the appellant is not permitted to re-export the goods, the cost of the calculators would be more than the market price, and the appellant would suffer enormous loss. It is his submission that in the facts and circumstances of the case, the Adjudicating Authority should have exercised its discretion in favour of the appellant. In support of his contention, learned Counsel has relied upon certain judgments to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the re-export of the impugned goods for the reason that there was a doubt as to whether the goods originated from Malaysia or China. In Cosmos Trading Co. vs. Commissioner of Customs, Kandla reported in [2006 (205) ELT 234 (Tri-Mumbai)], the request made by the appellant for re-export of the goods was accepted by the Mumbai Bench of the Tribunal for the reason that the goods had not been correctly supplied. In Commissioner of Customs Chennai vs. Sharda Impex reported in [2006 (195) ELT 85 (Tri-Del)], the Principal Bench dismissed the appeal filed by the Department against the directions that had been issued for re-export of the goods for the reason that the respondent therein had placed an order for supply of lamps of Malaysian origin but the goods that were supplied were of Chinese origin. 17. The factual position in the present case is entirely different. As noted above, the Appellant had imported calculators in SKD condition with a view to assemble them as fully functional calculators to avoid Anti-Dumping Duty. It cannot, therefore, be permitted to re-export the calculators in SKD condition when the Department detained the goods and after examination concluded that after ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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