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TMI Blog2023 (2) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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. The very fact that the importer had agreed for enhancement of the declared value in the statements made under by section 108 of the Customs Act, itself implies that the importer had not accepted the value declared in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the importer had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules. This is for the reason that it is only when the value of the imported goods cannot be determined under sub-rule (1) of rule 3 for the reason that the declared value has been rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termined; the differential customs duty already paid has been appropriated; the imported goods have been confiscated under the provisions of section 111(m) of the Customs Act, 1962 [the Customs Act] with an option to the appellant to redeem the same on payment of redemption fine in terms of section 125 of the Customs Act; and penalty has been imposed under section 114A of the Customs Act. 2. The records indicate that the appellant filed three Bills of Entry, each dated April 19, 2017, for clearance of Alloy Wheels for motorcycles through a customs house agent, namely, M/s. Him Logistics Pvt. Ltd. The consignment was put on hold for preventive check on account of a suspicion having arisen regarding mis-declaration of the retail sale price of the goods. In respect to the first Bill of Entry, the consignment was examined on April 25, 2017 in the presence of the G-Card holder of the customs house agent. The consignments covered by the second and third Bill of Entry were also examined on May 02, 2017 in the presence of the G-Card holder. On examination, it was found that the importer had not declared the brand name King way , in the import documents. The goods were, therefore, detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I further find that the open market inquiry was conducted in the presence of the importer and he has voluntarily accepted the manner of the market inquiry conducted and the method adopted for the valuation of the goods vide statements dated 28.04.2017 03.05.2016. 10(a) As per the Annexure-A ( Value re-determination and Duty Calculation Chart ), re-determined assessable value of the offending goods covered under Bill of Entry No. 9370825 dated 19.04.2017 filed by M/s Sukhdev Export Overseas is Rs. 16,59,884/- and duty payable on re-determined assessable value at appropriate rate is Rs. 5,91,847/-. 10(b) As per the Annexure-B (Value re-determination and Duty Calculation Chart), re-determined assessable value of the offending goods covered under Bill of Entry No. 9370886 dated 19.04.2017 filed by M/s Sukhdev Export Overseas is Rs. 15,91,656/- and duty payable on re-determined assessable value at appropriate rate is Rs.6,35,282/-. 10(c) As per the Annexure-C (Value re-determination and Duty Calculation Chart), re-determined assessable value of the offending goods covered under Bill of Entry No. 9370898 dated 19.04.2017 filed by M/s Sukhdev Export Overseas is Rs. 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.2017. The Appellant had admitted in his statements dated 27.04.2017, 28.04.2017 03.05.2017 that that Aluminium is the major constituent of the Alloy Wheels imported by them and it was clearly revealed that the Appellant had accepted in writing the re-assessed value of the said imported goods by himself participating in the market survey. It has been revealed in the statements of the Appellant that the department had conducted independent market survey in his (Appellant's) presence to re-determine the market value of the imported goods, which was voluntarily accepted by the importer in his statement, recorded under the Customs Act and had agreed upon to pay the differential duty. xxxx xxxx xxxx I find that the said imported goods i.e., Aluminium Alloy wheels were not securely affixed with MRP/RSP on the individual retail packs. RSP/MRP mentioning on the individual packing is required for retail sale under the allied Act. In the instant case the appellant failed to declare truthfully the MRP/RSP of the goods in the Bill of Entry as all the cartons containing different size/weight and branded unbranded Alloy wheels were declared with same MRP and thus mis-decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the decisions of the Tribunal in Commissioner of Customs vs. Hanuman Prasad Sons [MANU/CE/0151/2020], Vikas Spinners vs. Commissioner of Customs, Lucknow [2001 (128) E.L.T. 143 (Tri.-Del)], and Commissioner of Customs, ICD Patparganj Others ICDS (ICD Palwal, Haryana) vs. M/s. Manvi Exim Pvt. Ltd [2022 (7) TMI 466 -CESTAT New Delhi]. Learned authorized representative also submitted that the market enquiry had been conducted in the presence of the proprietor and he had also accepted the value of the goods re-determined on the basis of the market enquiry as also the calculation chart and therefore, it is not open to the appellant to challenge the value so re-determined. 11. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the Department have been considered. 12. In the present case, the statements of the proprietor of the appellant were recorded on April 27, 2017, April 28, 2017 and May 03, 2017. What transpires from the aforesaid statements in a nutshell is that: (i) The proprietor accepted that the declared value and retail sale price of the imported goods in the three Bill of Entry were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation Rules have been framed in exercise of the powers conferred by section 14 of the Customs Act. Rule 12 deals with rejection of the declared value and is reproduced below: Rule 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 of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule(1) of rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation .-(1) For the removal of doubts, it is hereby declared that:- (i) Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on were assessed. 16. The proper officer doubted the value of the goods declared by the appellant. In the statements made under section 108 of the Customs Act, the proprietor of the appellant accepted the re-determined value of the goods and also stated that he did not desire any notice to be issued or personal hearing to be provided. 17. It is on the basis of the statements made by the proprietor of the appellant that the Additional Commissioner, after rejecting the assessable value declared by the appellant, re-determined the value. 18. After payment of duty on the assessments made by the Additional Commissioner, the appellant filed an appeal before the Commissioner (Appeals), which appeal was dismissed. 19. It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Sub-section (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper officer shall pass a speaking order on the re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules. (f) The proper officer can raise doubts as to the truth or accuracy of the declared value on certain reasons which could include the grounds specified in clauses (a) to (f) in clause (iii) of the Explanation. (g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested. (h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 16. Proper officer can therefore reject the declared transactional value based on certain reasons to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression grounds for doubting the truth or accuracy of the val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. 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 contentions of both sides. We find that whatever may be the reasons, the appellant expressly gave its consent to the value proposed by Revenue and expressly stated that it did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Representative/Special Attorney and paid the duty thereon accordingly. [emphasis supplied] 27. In BNK Intrade (P) Ltd. vs Commissioner of Customs, Chennai [ 2002 (140) ELT 158 (Tri.-Del) ], the Tribunal observed as follows: 2 .. It is also to be noted that the importer had also agreed for enhancement of the price based on contemporaneous prices available with the Department. We, therefore, find no merit in the contention raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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