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TMI Blog2019 (12) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... ave remitted any amount directly or indirectly to the seller and shipper of the goods other than through normal banking channel, than the amount mentioned in the import documents. Accordingly, rejection of transaction value by Revenue is held to be against Section 14 of the Customs Act and the same is set aside. Further, the differential duty worked out and demanded from the appellant based on MRP of M/s EGPL is also bad and untenable for the reason that the goods are not manufactured in India. Thus, there is no prescribed MRP by the manufacturer under the legal Metrology Act read with the rules thereunder. In case of import, the importer is free to determine his retail selling price or MRP. There is no law under which the present appellants are bound to sell the goods at the retail selling price or MRP by M/s EGPL. Further distinguishing features in the sales made by M/s EGPL like providing of free installation, providing of copper tubing etc and after sales service are not being done or provided by the present appellants. In this view of the matter, the MRP of the appellant is not comparable with the MRP of M/s EGPL - Further, it is admitted fact that the imported goods found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redeem on payment of fine. Differential duty was determined at ₹ 1,12,72,494/- under Section 28 of the Act alongwith equal amount of penalty on M/s M. C. Overseas under Section 114A and further penalty of ₹ 30 lakhs was imposed on Shri Rohit Sakhuja and two others. 3. In the earlier round vide Final Order No. 58374 -77/2017 dated 15.12.2017 in Customs Appeal No. 52005 -52008/2014-Cus., this Tribunal held as follows:- 6. In the present case, the dispute is with reference to correct valuation of imported air-conditioners. Customs officers conducted certain verification on the information that comparable goods of identical nature have been imported by others with higher transaction value. The statement of various persons were recorded and details were collected regarding contemporaneous imports of identical goods. The Original Authority rejected the declared assessable value and re-determined the same based on the contemporaneous value declared for similar goods imported by other persons. The appellant contested such finding on various grounds. 7. We notice that all the issues raised by the appellants have not been duly addressed for a detailed finding by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reference was made to the newly introduced provisions under Section 2 (3A) of the Customs Act, 1962, which defined beneficial owner . The appellant claimed that this legal provision has no application during the material time. 12. Regarding comparison of value with reference to imports by EGPL, the appellant contested certain factual findings recorded in the impugned order. Based on a letter received from M/s. RAACO ONE, who is a non-authorized dealer of the air-conditioners, a conclusion was drawn regarding the nature of transaction of air-conditioners in India. It is submitted that EGPL provided free copper tubings, commission and installation service for the air-conditioners sold by them. We find this fact requires further examination. 13. One more important aspect is regarding confiscation of imported goods covered by 14 bills of entries. We note that the Original Authority ordered confiscation of seized as well as un-seized‟ goods with an option to redeem on payment of ₹ 2.5 crores in terms of Section 125 of the Customs Act, 1962. It is now a well settled legal principle that the Adjudicating Authority cannot order the confiscation of the goods, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements recorded under Section 108 of the Act. 5. It was also urged that Revenue has not brought any cogent evidence to support the allegation of undervaluation. The allegation based on import value by M/s EGPL and on the basis of NIDB data, are not reliable as the import is from different sources and country and not of matching quantity. It is further urged that transaction value can be rejected under Section 14 of the Act only if there is any cogent material to suggest that the imports have been undervalued. Further urged that in view of ruling of Hon‟ble Supreme Court in the case of Eicher Tractors Pvt. Ltd., Vs. Commissioner of Customs -2000 (122) ELT 321 (SC), it is settled law that if transaction value is rejected then value has to be arrived by following the Valuation Rules in seriatum, i.e. going serial numberwise from Rule 4 onwards. Further, Rule 4(3) of the Valuation Rule provides that in case more than one transaction value of identical goods is available, then the lowest of such value shall be taken for the purpose of determining the value of imported goods. The value proposed in the show cause notice being in violation of Rule 4(3), cannot be relied for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the impugned order observed that the directions in the Final Order of this Tribunal, in remand are as follows:- (i) Copies of Bills of Entry filed by M/s EGPL and data records of NIDB were not provided to the Noticee despite request for the same made by them. (ii) MRP declared by the Noticee was higher than those of M/s EGPL. (iii) That comparison with the same model of air conditioners was not sufficient and the requirement of comparable level of transactions should have been fulfilled. (iv) Exemption of Notification No.29/2010-Cus dated 27.2.2010 (exemption from additional duty of customs) was denied on insufficient grounds . 10. Further observed that the issue for determination are as follows: (i) Whether the declared value is liable to be rejected and the same required to be re-determined as per provisions of Customs Act and the Customs Valuation Rules, 2007, (ii) Whether the declared MRP is liable to be rejected and re-determined as per Rules. (iii) Whether the goods are liable to be confiscated. (iv) Whether exemption from Additional Customs Duty leviable under Section 3(5) of the Customs Tariff Act, 1975 under Notification No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entical to those imported by M/s EGPL. Further, the declared value of M/s EGPL as regards to contemporaneous import have been disputed on the ground that terms of import/ sale were different. Further, the source of import is different as M/s EGPL has imported from the manufacturer whereas these appellants have imported from distributors located at Singapore /Dubai. Further, M/s EGPL was providing to the customers free copper tubing, free installation and commissioning and therefore the terms of sale was different. Further, the commercial level in the transaction of the appellant as compared to M/s EGPL is different. Learned Commissioner observed that the argument of the appellant is not supported by any evidence - documentary or otherwise. Investigation from one of the dealers of O-General showed that such free services were not included in the price charged by them. Further, from RUD Sl. No. 21, is part of the show cause notice clearly shows that no warranty was provided by M/s EGPL, similar to the appellant. Thus, there is no substantial difference in the terms of sale by the appellant and M/s EGPL. It was further observed that M/s EGPL imported about 1500 pieces of split aircond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s EGPL. Further, observed that the MRP or selling price stated by Shri Ajit Singh Chadha in his statement dated 19.03.2012 is an average sale price and not the actual sale price. Further, observed that the actual retail sale price in absence of documents is not possible to examine vis-a-vis the declared MRP. Learned Commissioner further on comparing the MRP as declared by the appellant as per Annexure-A, to the show cause notice found the same to be higher in many cases than MRP declared by M/s EGPL. He was pleased to hold that the allegation of declared lower MRP is unsubstantiated and cannot be sustained, thus dropped the said allegation. 17. As regards exemption from payment of SAD, in view of the VAT/ Sales Tax under Notification No. 29/2010-Cus. it was observed that the appellant have not produced any sales bills / evidence to show that they were depositing the VAT with the Department. Further, observed that there is no such stipulation in the said notification with respect to all goods which are covered by MRP provision. 18. As regards confiscation, it was observed that it is settled legal position that only seized goods can be confiscated, even if they are released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring investigation. Further, penalty of ₹ 18,19,448/- was imposed on M/s M. C. Overseas under Section 114A. Further, penalty of ₹ 20 lakhs each on Shri Rohit Sakhuja and Shri Ajit Singh Chadha was imposed under Section 112(a) of the Act. 19. Being aggrieved, the appellants are before this Tribunal. 20. Learned Counsel Shri Ashish Batra appearing for the appellant urges that the show cause notice is time barred as regards the fourteen past 14 Bills of entry which were filed and assessed more than twelve months prior to the date of show cause notice. The allegation of suppression of valuation by Revenue is based on change of opinion and based on the information which was already on record. For change of opinion, extended period is not available to Revenue. It is further urged that the Bills of Entry were filed based on the documents of import. None of the documents have been found to be sham or forged. The Bills of Entry were assessed on the price declared, then cleared by concurrent audit, countersigned by the proper officer. There is no case or allegation of any manipulation or concealment of facts. Further, there is no allegation that the appellant have paid anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of more than one transaction value of identical goods is available, then the lowest of such value shall be taken. Further, from the NIDB data for the relevant period, it is evident that identical goods were cleared at a price lower than the price declared by the appellant. Thus, the reliance by Revenue on the price declared by M/s EGPL is perverse and thus the enhancement is erroneous and fit to be set aside. 24. Learned Authorised Representative for the Revenue have relied on the impugned order. 25. Having considered the rival contentions, we find that the facts on the basis of which the allegation of undervaluation have been made, like NIDB data or import value of M/s EGPL were available to Revenue all throughout. It is admitted that M/s EGPL is also a regular importer of O-General ACs directly from the manufacturer located at Thailand. Accordingly, the demand with respect to 11 past bills of entry which were filed and assessed prior to 13.03.2012 is held time barred and accordingly set aside. Consequently, the revaluation and confiscation is also set aside with respect to these 11 bills of entry. As regards the rejection of transaction value with respect to the liv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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