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TMI Blog2019 (6) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... A. It is also evident from the record of the case that the lower adjudicating authority has not recorded the reason as to why he has resorted to the valuation under Rule 7 without the exhausting provisions of Section 14 of the Customs Act and also without exhausting the application of Rule 3, 4 and 5 of Custom Valuation Rule. Therefore, the order passed by the lower adjudicating authority is in contrary to the Customs Valuation Rules, which was also not corrected in the impugned order by the Commissioner (Appeals). It is evident from the Corrigendum that the demand has been confirmed by Commissioner of Customs (Export, ICD) under Rule 5 of the Customs Valuation Rules read with Section 14 of the Customs Act. We find that if this Corrigendum has been issued by the Commissioner of Customs then the Commissioner (Appeals) is not competent officer to hear the appeal. Further, Rule 5 of the Valuation Rules, which deals with the transaction value on the basis of similar goods, has not been properly spelt out in the said Corrigendum. The adjudicating authority has not produced the value of the similar goods to the imported consignment which is subject matter of this proceeding. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bide Tips, Tungsten Carbide Rod and Drill Bits were found not to be declared and power (Small Balancing Wheel) were found to be mis-declared. As the consignment was live and was incurring heavy demurrage and detention charges and also to meet the business obligation and commitment, the appellant waived the written Show Cause Notice and agreed to pay the duty as determined by the adjudicating authority along with the redemption fine and penalty. The consignment was, accordingly, released by the Customs. 3.1 However, the learned Advocate contests on the following grounds: (i) That, there is no estoppel in law to challenge the impugned order even after the duty, penalty and redemption fine have been paid by the appellant; (ii) That, the mis-declaration of skates, as held by the primary adjudicating authority, is bad in law on account of the fact that the skates and power balancing wheel is one and the same but for the minor difference in the nomenclature of the product. Merely, having the neutralised function the power balancing wheel does not seem to be going out of the general nomenclature of skates. The adjudicating authority had also conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... South India Television 2007 (214) ELT 3 (SC); (v) That the undeclared goods, which were found to be contained in the consignments imported by the appellant was due to mistake on the part of the shipper. The shipper has also issued a letter dated 4 October, 2016 stating that these items were stuffed in the container by mistake and raised supplementary invoice for the items placed in the container with a request to appellant to get the goods released from the Customs Department and sale them on their behalf. (vi) That, the redemption fine imposed on the appellant under Section 125 of the Customs Act was bad in law as the same was imposed on the sole ground of mis-declaration. Learned Commissioner in the impugned order failed to discuss the same and passed the order without proper appreciation of the submissions made by the appellant. Also the imposition of penalty under Section 112(a)(ii) was contested on the ground that there was no deliberate mis-declaration and undervaluation by the importer. In view of above submission of learned Advocate that the impugned order is not sustainable and required to be set aside in appeal. 4. Learned Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hair Treatment Clipper 250 4. Shaver 200 5. Knitted Lady Tops 85 6. Tungsten Carbide Tips (in Kgs.) 1900/Kg 7. Tungsten Carbide rod (in Kgs) 1900/Kg It is pertinent to be mentioned that rates of item at Sr. No. 6 7 depending upon the quality of the goods. On being shown the samples shopkeeper has informed that the said goods of very lower quality and hence the price of respective goods is lower to other genuine or high quality goods sold in the market. The above said rates were taken in presence of representative of CHA and as per verbal discussion only, however, the shop owner has refused to give anything in writing. 7. From the perusal of this market survey report, it is evident that the survey was conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty along with fine and penalty on account of urgency of clearance of the imported goods. It is also evident from the record of the case that the lower adjudicating authority has not recorded the reason as to why he has resorted to the valuation under Rule 7 without the exhausting provisions of Section 14 of the Customs Act and also without exhausting the application of Rule 3, 4 and 5 of Custom Valuation Rule. Therefore, the order passed by the lower adjudicating authority is in contrary to the Customs Valuation Rules, which was also not corrected in the impugned order by the Commissioner (Appeals). We also find that the Corrigendum dated 28.9.2016 has also been issued wherein it is stated as under: I re-determine the value of the goods amounting to ₹ 49,55,515/- (Rs. Forty Nine Lakh Fifty Five Thousand Five Hundred Fifteen only) in respect of Bill of Entry No. 5716639 dated 21.6.2016 under Rule 5 of the Customs Valuation (Determination of Value of Imported Goods), Rules 2007 read with Section 14 of the Customs Act, 1962. I confirm the re-determined duty of ₹ 11,85,925/-. Since the importer has already paid duty of ₹ 5,09,725/-, the differenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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