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TMI Blog2023 (1) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ing heard, but the importer did not do so. On the other hand, the importer specially stated in the statement recorded under section 108 of the Customs Act, after being shown the contemporaneous value, that it he agreed that the value of the goods should be enhanced. The importer also specifically stated that it did not want to avail of the right conferred under section 124 of the Customs Act and, therefore, did not want any show cause notice to be issued to or personal hearing to be provided. The Commissioner (Appeals) placed emphasis on the classification of the goods shown as Serial No. 4 in the Bill of Entry and observed that the evidence gathered by the revenue to prove that the goods would fall under a different classification has a vital role. The Commissioner completely loss sight of the fact that Deepak Garg, who had appeared on the behalf of the importer, had specifically stated that the importer accepted the valuation (based on the classification proposed by the department) and also stated that he would pay the differential duty and would not require any show cause notice to be issued or personal hearing to be granted. Despite the categorical statement made by Deepak G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Glass Seed Beads 620 kgs 25 4. Hair Bow Raw Accessories Articles 21204 kgs. 645 5. Mosquito Racket 7200 120 4. The goods were examined by the officers and details of the physical examination was recorded under a Panchnama dated 28.04.2016. It appeared to the officer that the value of the item at Serial No. 4 had been mis-declared and mis-classified. Further investigation was carried out and Deepak Garg, son of Anjani Kumar Garg, duly authorized by the proprietor, appeared on 09.05.2016 and gave his statement under section 108 of the Customs Act. He stated that he was ready to pay the differential duty and did not want any show cause notice to be issued or personal hearing to be provided and that the matter could be decided by taking a lenient view. He also stated that the exporter was ready to pay the fine and penalty on such import. Deepak Garg again gave statements on 09.05.2016 and 13.05.2016 to the same effect. Infact, after going through the chart containing the re-det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved, the importer filed an appeal before the Commissioner (Appeals) who, as noticed above, allowed the appeal by order dated 25.04.2018. The relevant portion of the order passed by the Commissioner (Appeals) is as follows: I find from the above cited judicial pronouncements that in respect of classification issue, the evidences gathered by the Revenue to prove its claim have vital role. In the present case, the Department‟s whole case is based on statements dated 09.05.2016 and 13.05.2016 of Sh. Deepak Garg, authorized signatory of the appellant. However, on perusal of the Order-in-Original, I find that he agreed to pay differential duties only after given him to understand the fact by the investigating authority that the impugned goods is Resin/plastic beads classifiable under CTH 39269099. Beside the statements, referred above, I find that there is no evidence in the impugned Order-in-Original to deny the appellant‟s claim in this regard. ***** Accordingly, I hold that there was no mis-declaration in this regard by the appellant, as far as classification issuer of Hair Bow Raw Accessories Articles is concerned. Therefore, the goods can be considered as H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted the value of the goods it was not open to the importer to challenge the value of the goods, nor was it open to the importer to file an appeal for the reason that the requirement of not passing any speaking order is to reduce litigation; (ii) The decisions relied upon by the Commissioner (Appeals) are clearly distinguishable on facts, as in the present case, a statement had been made by the importer on various dates voluntarily accepting the enhanced value based on contemporaneous data; and (iii) The Commissioner (Appeals) was not justified in discarding the statement made on behalf of the importer for the reason that mere acceptance is not good enough to recover the duty and the department should have adduced clear and cogent evidence that additional consideration, over and above the transaction value, had flown. 10. The submissions advanced by learned authorized representative have been considered. 11. Section 14 of the Customs Act deals with Valuation of Goods‟ and is reproduced below: Section 14. Valuation of goods.- (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include- (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed; (b) the sale involves special an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture of production; (e) the non declaration of parameters such as brand, grade, specifications that have relevance to value; (f) the fraudulent or manipulated documents. 13. Rule 12 provides that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be, can be ascertained an thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. 16. It would be seen that though in a case where re-assessment has to be done under sub-section (4) of section 17 of the Customs Act, the proper officer is required to pass a speaking order on the re-assessment, but if the importer or exporter confirms his acceptance of the re-assessment, a speaking order is not required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the rules to be made in this behalf. The 2007 Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may ask the importer to furnish further information. Rule 12(2) stipulates that it is only if an importer makes a request that the proper officer shall, before taking a final decision, intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared and provide a reasonable opportunity of being heard. To remove all doubts, Explanation 1(iii)(a) provides that the proper officer can have doubts regarding the truth or accuracy of the declared value if the goods of a comparable nature were assessed at a significantly higher value at about the same time. 21. In Century Metal Recycling Pvt. Ltd. vs. Union of India [2019 (367) E.L.T. 3 (S.C.)], the Supreme Court summarized the provisions of rule 12 of the Valuation R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 108 of the Customs Act, it was sought to be contended by the importer in the Appeal filed before the Commissioner (Appeals) that the transaction value of the imported goods alone should have been treated to be the value of the goods, as provided for under rule 3(1) of the Valuation Rules. 23. In this connection, it would be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs. Commissioner of Customs, Jodhpur [2015 (326) ELT 185 (Tri.-Del)], wherein the Tribunal, after making reference to the decisions of the Tribunal in Vikas Spinners vs. Commissioner of Customs, Lucknow [2001 (128) ELT 143 (Tri.-Del)] and Guardian Plasticote Ltd. vs. CC (Port), Kolkotta [2008 (223) ELT 605 (Tri.-Kol)], held that as the Appellant therein had expressly given consent to the value proposed by the Revenue and stated that it did not want any show cause notice or personal hearing, it was not necessary for the Revenue to establish the valuation any further as the consented value became the declared transaction value requiring no further investigation or justification. Paragraph 5 of the decision is reproduced below: 5. We have considered the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999 . After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5-1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and paid the duty amount on the loaded value of the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of loaded value of the goods as determined in the presence of their Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 4 in the Bill of Entry and observed that the evidence gathered by the revenue to prove that the goods would fall under a different classification has a vital role. The Commissioner completely loss sight of the fact that Deepak Garg, who had appeared on the behalf of the importer, had specifically stated that the importer accepted the valuation (based on the classification proposed by the department) and also stated that he would pay the differential duty and would not require any show cause notice to be issued or personal hearing to be granted. Despite the categorical statement made by Deepak Garg in the statement recorded under section 108 of the Customs Act, the Commissioner (Appeals) still observed that the department did not adduce any clear and cogent evidence that any additional consideration, over and above the transaction value, had flown. The view taken by the Commissioner (Appeals) is contrary to the aforesaid decisions and, therefore, cannot be sustained. 28. Thus, the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. The order dated 08.05.2018 passed by the Commissioner (Appeals), therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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