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TMI Blog2020 (2) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rs. 2,61,49,646.89) (redetermined assessable value) liable to confiscation under section 111(m) of the Customs Act, 1962. 7.1.3. I confirm the demand of customs duty amounting to Rs. 59,72,165/- (Rupees fifty nine lakh seventy two thousand one hundred sixty five only) from Sri Sai Imports and its Proprietor Shri R.K. Sharma under proviso to section 28(1) of the Customs Act, 1962 and order the recovery forthwith. 7.1.4. I confirm the demand of interest at the appropriate rates chargeable on the customs duty amounting to Rs. 59,72,165/- from Sri Sai Imports and its Proprietor Shri R.K. Sharma on account of the delayed payment of differential duty and in terms of section 28AB of the Customs Act, 1962 and order the recovery forthwith. 7.1.5. I impose a personal penalty equal to an aggregate amount of the duty as shown in para 7.1.3 above and interest calculated on it at the appropriate rates upto the date of payment of the said duty on Sri Sai Imports and its Proprietor Shri R. K. Sharma, under section 114A of the Customs Act, 1962. 7.1.6. I impose a penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) on Shri R.K. Sharma under section 114AA of the Customs Act, 1962. 7.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Customs duty Rs. 59,72,165/- (Rupees fifty nine Lacs seventy two thousands one hundred sixty five only), as detailed in Annexure "A" & "B" should not be demanded and recovered from him under Section 28(1) of the Customs Act, 1962. 19.4 The impugned goods, i.e., the goods imported vide above mentioned Bills of Entry detailed in the chart in Para 14 above totally valued at $ 626771.8 USD (redetermined assessable value as detailed in Annexure "A" & "B" to this notice) imported under the above Bills of Entry imported by them by resorting to undervaluation should not be held liable to confiscation under Section 111(m) of Customs Act, 1962 read with section 46(4) and section 14 of the said Act, and with Rule 3 and 11 of the Customs Valuation (Determination of Value of Imported Goods) Rules 2007. 19.5 Interest at the appropriate rate should not be charged from them on the delayed payment of differential duty in terms of Section 28AB of the Customs Act, 1962. 19.6 Penalty should not be imposed on M/s Sri Sai Imports and its proprietor Shri R.K. Sharma under Section 112(a) and/or Section 112(b)/Section 114A and Section 114AA of the Customs Act, 1962. 19.7. The provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Price of Imported Goods) Rules, 2007. Hence the value so determined has to be adopted for determination of the value for determination of duty payable. [Varsha Plastic Pvt Ltd [2009 (235) ELT 193 (SC)], Mukund Ltd [1999 (107) ELT 653 (T)] iii. Further once the fact of undervaluation has been admitted by the appellant it need not be proved again.{System & Components Pvt Ltd [204 (165) ELT 136 (SC)], K I Pavunny [1997 (90) ELT 241 (SC)]} iv. For the purpose of valuation it is not necessary to establish whether any extra remittance has been made to the supplier or not. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument. 4.2 We are in agreement with the submissions made by the counsel for the appellant that the issue is squarely covered by the decision of tribunal in case of S K Dhawan [2016 (344) ELT 436 (T-Mum)] and Raghav Overseas [Final Order No A/86594-86607/ 2019 dated 13.9.2019] The distinction sought to be made by the learned Authorized Representative, do not address the crux of issue of rejection of transaction value. Without rejecting the transaction value, the application of any other rule, for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a trading house with intent to suppress the value. He would submit that when the goods were cleared on importation, all the documents were produced and after verification only the Customs Officers cleared the consignments. He relied upon the decision of the Apex Court in the case of CC v. Prabhu Dayal Prem Chand - 2010 (253) E.L.T. 353, Ruchi Associates v. Collector - 1992 (61) E.L.T. A134 (S.C.). He also relied upon the decision of this Tribunal in the case of Radhey Shyam Ratanlal vide Final Order No. A/3972/2015/CB, dated 23- 12-2015 for the proposition that contemporaneous imports were discarded, accordingly requirement of Rule 5(3) of Customs Rules were validated and the appeal was allowed. He would submit that a similar issue was decided by this Bench in the bunch of appeals in the case of Ajay Export and Ors. vide Final Order Nos. A/3446-3470/2015/CB, dated 20-10-2015, wherein it was held that contemporaneous imports price needs to be considered for arriving at the correct value. 4. Learned DR would submit that the finished goods imported by the appellant, i.e., valves which have to be manufactured wherein the cost of raw material, manufacturing cost and other costs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differential duty are flawed for more than one reason. 7.1 Firstly, we find that the methodology adopted by the adjudicating authority for redetermination of the value of the imported consignments is totally on presumption and surmises. The adjudicating authority has come to a conclusion that imported ball valves contained brass content of 76% and iron content of 24%, zinc content in zinc ball valves is of 65% and iron content is of 35%. In the entire case records we are unable to find anything which indicates that the content as recorded by the adjudicating authority is supported by any evidence. The adjudicating authority has relied on the statement given by S.K. Dhawan. In our considered view this finding of the adjudicating authority is not in consonance of the law. There is nothing on record to indicate that samples were drawn from the consignment and sent for testing to Dy. Chief Chemist and Examiner of the Department to ascertain the contents of brass and zinc. It is also surprising to note that the adjudicating authority has relied upon only the statement of Shri S.K. Dhawan to hold that the valves were having brass and zinc content as mentioned. 7.2 Secondly, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts & Ors. (supra) are on similar set of facts wherein this Bench has recorded that contemporaneous import details if produced by the appellant-importer, refusing to look to such evidence is incorrect as the value in the contemporaneous imports were accepted by the department in respect of some importers. We reproduce the findings of this Bench in the case of Ajay Exports (supra). "(c) We also note that the adjudicating authority has refused to look at other contemporaneous imports, which are not the subject matter of the present show cause notice on the ground that there was gross undervaluation being done by the trade. We find that if the value of contemporaneous imports were accepted and the transaction value in those case are not doubted by the revenue in the assessment orders, it is not understandable why the said values could not have been used for the purposes of comparing the same with the value of the consignments in question in these appeals. It is also said along that the Department has to first reject the transaction value and then follow the rules as laid down from rules 5 to 9 of the valuation rules in order to arrive at the value for discharge of Customs duty. From ..... X X X X Extracts X X X X X X X X Extracts X X X X
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