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TMI Blog2019 (5) TMI 1775X X X X Extracts X X X X X X X X Extracts X X X X ..... selling price of each as applicable in India was also compared - when the transaction value of Rule 3 is proposed to be rejected, it is Rule 4 Rule 5 which is to be invoked first, i.e., comparison with the value of identical or similar goods. The valuer s report is absolutely silent about such comparison. At least there is no specific mention to that effect in the report. It is rather stated that Rule 7 has been invoked by the approver/valuer to arrive at the re-determined value. It stands clear that Rule 7 requires a specific procedure as has to be followed. The report dated 09.04.2018 is silent about proper application of this Rule. There is no mention of unit price at which the imported goods or identical or similar imported goods are sold. There is no whisper about deductions as to be made prior arriving at the re-determined value - Thus, the data on which is based the valuer s report need to be re-examined and it has to be decided afresh as to whether Rules 4-7 CVR, 2007 have duly been complied with while re-determining the price. Hence, the matter need to be remanded back. Absolute Confiscation of Intercepted Goods - HELD THAT:- The Foreign Trade Regulation Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als are as follows: Sl. No. Appeal No. Appeal filed by SCN O-I-O O-I-A 1. C/50636/2019 M/s. Suich Industries Pvt. Ltd. Plot No. 106, Sector-7, SIDCUL, Haridwar, Uttarakhand 27.07.2018 20.09.2018 01.10.2019 2. C/50637/2019 Sh. Gunnit Singh Allagh (Director of Suich Industries Pvt. Ltd.) Plot No. 68, 3rd Floor, Block No. 5, W.E.A. Naiwala, Karol Bagh, New Delhi 110 005 27.07.2018 20.09.2018 01.10.2019 3. C/50638/2019 Sh. Sanchit Allagh (Director of Suich Industries Pvt. Ltd.) Plot No. 68, 3rd Floor, Block No. 5, W.E.A. Naiwala, Karol Bagh, New Delhi 110 005 27.07.2018 20.09.2018 01.10.2019 2. M/s. Suich Industries Pvt. Ltd., Haridwar, Uttarakhand is engaged in import having IEC No. 0509059791. On the basis of an intelligence, the Department observed that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant that the Order of re-determination of the value and only of confiscation of IMEI numbered goods are absolutely wrong. It is submitted that the proper facts have not been appreciated by the Adjudicating Authorities below that the appellant has imported the IMEI stickers from M/s. HK Kai Long Trading Ltd., China and Blue Wave Trading H.K. Limited. They were understood by the appellant to be the TAC holders of M/s. Shenzhen Yifang Communications Technology Co., China and M/s. Xinchuangxin International Co. Ltd., China and as such was entitled to use the said stickers. The authorities are alleged to have wrongly relied upon Mobile Standard Alliance India (MSAI) report. The transaction value also has been re-determined without giving reasons for setting aside the transaction value of the importer that too in violation of Rule 3 of Customs Valuation (DVIG) Rules, 2007. The Department has wrongly relied upon Rule 7 for determination of the value. Imposition of penalty is alleged to be wrong and quantum as exorbitant. The redemption fine of ₹ 30 Lakhs is also alleged to be grossly dis-proportionate mainly on the grounds that the goods actually are not liable to be confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter has rightly been rejected and re-determined? (ii) Whether the goods of IMEI numbers/stickers have rightly been confiscated? (iii) Whether the penalties have rightly been imposed? 6.3. Applying the above noted facts to the respective controversies as mentioned above, we observe and hold as follows: (i) Re-determination of transaction value The transaction value has to be determined as per Rule 3 of the Valuation Rules in accordance whereof the value of imported goods has to be accepted provided there are no restrictions as to the disposition or use of the goods or any other kind of restrictions, the goods are imported in compliance of prevalent laws and many other conditions as mentioned in the said Rule. Rule 12 of Customs Valuation Rules (CVR), 2007 speaks about rejection of declared value which reads as follows: 12. 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 receiving such further information, or in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sold in the greatest aggregate quantity to persons who are not related to the sellers in India, subject to the following deductions : - (i) either the commission usually paid or agreed to be paid or the additions usually made for profits and general expenses in connection with sales in India of imported goods of the same class or kind; (ii) the usual costs of transport and insurance and associated costs incurred within India; (iii) the customs duties and other taxes payable in India by reason of importation or sale of the goods. (2) If neither the imported goods nor identical nor similar imported goods are sold at or about the same time of importation of the goods being valued, the value of imported goods shall, subject otherwise to the provisions of sub-rule (1), be based on the unit price at which the imported goods or identical or similar imported goods are sold in India, at the earliest date after importation but before the expiry of ninety days after such importation. (3) (a) If neither the imported goods nor identical nor similar imported goods are sold in India in the condition as imported, then, the value shall be based on the unit price at wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brand name KGTEL , whereas, the appellants were engaged in the manufacture of brands Strawberry and Crona . Though the appellants relied upon a communication from Shenzhen Ltd. but perusal thereof clarifies that the letter lacks the details of specific IMEI Nos. to which the said letter referred. The original adjudicating authority had observed that even the original copies of those letters were not produced by the appellants. Thus, we are of the opinion that the clinching evidence has not been impressed upon by the original adjudicating authorities. Hence, the conclusion that appellants were not authorised to use the impugned IMEI No. for their own brands, i.e. Strawberry and Crona is opined to be based upon the presumption due to lack of details about IMEI Nos. in the letter referred to by the appellants. 7. Per contra, it is the submission of the appellant that they were authorised to import from such companies who were the TAC holders of M/s. Shenzhen Yifang Communications Technology Co., China, the Company who had issued those letters. Thus, we are of the opinion that the adjudicating authorities below have absolutely ignored the said submission and have merely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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