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TMI Blog2023 (7) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... additions, if necessary, as per Rule 10 - In case the valuation cannot be done under Rule 3 /Rule 10. It must be done sequentially under rules 4 -9 sequentially. It is observed from the extract of Emails placed on record that after receiving the first consignment in February, 2016 there is a common order confirmation for purchase of 5000 Kg. safranal . However, prior to the said order was completely dispatched there have been exchange of emails for modifying the agreed price at the rate of 428 USD per Kg. to 408 USD per Kg. and based on said communication that the order confirmation got modified with respect to undispatched quantity of safranal . These observations, are sufficient to hold that though the time period has been short but there is a reasonable genesis for reduction in price while importing Aroma chemical as safranal . It is also observed that a certificate being issued by M/s.Givaudan, the importer, acknowledging the quantity imported by the appellant and the prices for the same. The said certification is in complete conformity of the description and the price in the impugned bill of entries. These observations are also sufficient to hold that the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other sticker underneath was found, wherein the contents of the container were described as safranal . Prima Facie , believing the said act as an act of misdeclaration that the chemical was seized: Nine Drums of 25 Kg. each containing 222.5 Kg. of 'Aroma Chemical K-100' alongwith 450 grams of safranal valued at INR. 81,05,586/- were seized from the factory of M/s. Veera Fragrances, Parpad Ganj, New Delhi. From both the premises of Ajit Traders were found 34 Tin Containers mentioning to contain Aroma Chemical K-100 valuing at INR.3,09,65,500/- . From another premises of M/s. Veera Fragrances in Noida 50 tin containers of the impugned Aroma Chemical valuing at INR 4,55,37,000/- were seized alleging the seized chemical as liable for confiscation vide seizer memo dated 10.08.2017. 3. Though the appellants in their defense, mentioned that in the year 2016 itself, to maintain the trade secrecy, they in consultation with their foreign supplier that is M/s.Givaudan, Switzerland changed the name of Safranal to Aroma Chemical, K-100 . However, based on the investigations and the statements recorded during investigation the said defense was not considered and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter and the negotiation stands duly confirmed by the exchanged emails between the exporter M/s. Givaudan, Switzerland and the appellant. It is impressed upon that the appellant is also distributor of Givaudan, hence, is a bulk buyer. Thus, the reduction in price was merely a commercial consideration which has wrongly been alleged as an intentional mis-declaration with an intent to undervalue the import. 7. It is further impressed upon that price reduced from 428 USD per Kg. to 408 USD per Kg. even when the goods were imported as safranal . This price of 408 USD per Kg. remained the same when the Aroma Chemical was imported as Aroma Chemical K-100 . Above all, the Director Mr. Vaibhav Jain has nowhere admitted the undervaluation of the goods. The genuine reason submitted was the maintenance of secrecy in the trade. There is no evidence for any malafide intent on the part of Mr. Vaibhav Jain. Finally, it is submitted that in the given circumstances, there was no reason with the Department to reject the transaction value. Reassessment has also not been done in the manner as prescribed. Resultantly, neither the seized goods are liable for confiscation nor penalty is imposable up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical K-100 and at still lower prices. Hence, alleging misdeclaration as a cause for under-valuation. 10. The Adjudicating Authority below while confirming both these allegations has rejected the transaction value reassessed it and has confirmed the differential amount to be recovered from the appellants and has also ordered the confiscation of the recovered Aroma Chemical from four of the premises of the appellants. In addition, has imposed penalty on both the appellants. To adjudicate the reasonableness of these findings, we foremost need to look into the definition of transaction value and the procedure for arriving at transaction value. We observe that Duties of customs are levied on goods imported into and exported from India at the rates specified in the Schedules to the Customs Tariff Act, 1975. On some goods, the levy is based on quantity (specific duty), and other goods it is based on value (ad valorem). If the duty is to be levied based on value, valuation for the purpose has to be done as per Section 14 which reads as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . c) Price is the sole consideration for sale. d) Some amounts indicated in the first proviso to sub-section 1 of section 14 must be included. e) Valuation will be as per any other conditions as may be specified in the Rules. 12. Thus, the default position is that the valuation has to be done on the basis of the transaction value and not based on any fixed value. The second proviso to sub-section (1) of Section 14 provides for Rules to be made in this behalf to provide for: a) the circumstances in which the buyer and the seller shall be deemed to be related ; b) the manner of determination of value in respect of goods when there is no sale , c) the manner of determination of value in respect of goods if the buyer and the seller are related , d) the manner of determination of value in respect of goods where price is not the sole consideration for the sale ; e) the manner of determination of value in respect of goods in any other case ; and f) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value , and determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants. There are 3 purchase orders:- (1) Purchase order dated 09.12.2015 has two transaction values for the Aroma Chemical imported i.e. @ 428 and 408 USD per Kg. (2) The purchase order dated 27.06.2016 the value mentioned is at the rate of 400 USD per Kg. (3) The purchase order dated 13.12.2016 is at the rate of 380 USD per Kg. 17. We also observe from the extract of Emails placed on record that after receiving the first consignment in February, 2016 there is a common order confirmation for purchase of 5000 Kg. safranal . However, prior to the said order was completely dispatched there have been exchange of emails for modifying the agreed price at the rate of 428 USD per Kg. to 408 USD per Kg. and based on said communication that the order confirmation got modified with respect to undispatched quantity of safranal . These observations to our understanding are sufficient to hold that though the time period has been short but there is a reasonable genesis for reduction in price while importing Aroma chemical as safranal . We also observe a certificate being issued by M/s.Givaudan, the importer, acknowledging the quantity imported by the appellant and the prices for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the transaction value. xxx xxx xxx 12. Rule 4(1) speaks of the transaction value. Utilisation of the definite article indicates that what should be accepted as the value for the purpose of assessment to Customs duty is the price actually paid for the particular transaction, unless of course the price is unacceptable for the reasons set out in Rule 4(2). Payable in the context of the language of Rule 4(1) must, therefore, be read as referring to the particular transaction and payability in respect of the transaction envisages a situation where payment of price may be deferred. xxx xxx xxx 13. That Rule 4 is limited to the transaction in question is also supported by the provisions of the other rules each of which provide for alternate modes of valuation and allow evidence of value of goods other than those under assessment to be the basis of the assessable value. Thus, Rule 5 allows for the transaction value to be determined on the basis of identical goods imported into India at the same time; Rule 6 allows for the transaction value to be determined on the value of similar goods imported into India at the same time as the subject goods. Where there are no contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. reported as (2012) 1 SCC 186 = 2011 (272) E.L.T. 641 (S.C.) Hon'ble Supreme Court has held as follows:- 10. The law, thus, is clear. As per Sections 14(1) and 14(1A), the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in that provision. Section 14(1) is a deeming provision as it talks of 'deemed value' of such goods. Therefore, normally, the Assessing Officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods. This, ordinarily, is the course of action which needs to be followed by the Assessing Officer. This principle of arriving at transaction value to be the assessable value applies. That is also the effect of Rule 3(1) and Rule 4(1) of the Customs Valuation Rules, namely, the adjudicating authority is bound to accept price actually paid or payable for goods as the transaction value. Exceptions are, however, carved out and enumerated in Rule 4(2). As per that provision, the transaction value mentioned in the Bills of Entry can be discarded in case it is found that there are any imports of identical goods or similar goods at a hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e customs duty while declaring safranal as Aroma Chemical K-100. 22. The another important observation of ours is the another important aspect as observed is that the value was reduced while importing Aroma Chemical as safranal itself. As already mentioned above, there is no unreasonability in the said reduction of value, hence, no question arises for the rejection of transaction value when it reduced from USD 428 per Kg. to 408 USD per Kg. Appellant has given explanation in defence that the reduction in price was purely out of negotiations prior receiving the subsequent consignment. No evidence is produced on record to falsify the said defence nor the emails and the certificate of importer as produced on record by the appellant. Department also failed to produce any evidence to prove that 'safranal' and Aroma Chemical K-100 are two different compounds. Both are observed to the one and the same chemical. 23. We also observe that when Aroma Chemical was imported as Aroma Chemical K-100 , several consignments were imported at the same value of USD 408 per Kg. as was initially got negotiated for safranal . The above discussion is sufficient for us to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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