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TMI Blog2023 (10) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances which prevailed prior to 1998, depicted in the decision of the Hon ble Supreme Court in EICHER TRACTORS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [ 2000 (11) TMI 139 - SUPREME COURT] , and in accord thereof, be found to have justified the invoking of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for re-determination of the assessable value by addition to the extent of concealed price of procurement, it would well have been within the scheme of law to confiscate the goods by resort to section 111 of Customs Act, 1962. The fresh determination would have been a consequence of non-compliance with section 14 of Customs Act, 1962 and rule 4 (2) of the said rules arising from deliberate misrepresentation of the transaction value in filing bill of entry. Confiscation of goods - HELD THAT:- Section 111(m) of Customs Act, 1962 may be invoked only upon material particulars being misdeclared and this detriment is in addition to duty liability determined under section 28 of Customs Act, 1962. For such confiscation to be correct in law, it is necessary that the circumscribing circumstances must exist; the value itself has not been established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 from M/s S H Universal, UK upon enhancement of assessable value from GBP 90 to GBP 212 apiece by adopting the value in imports effected by M/s Shashi Charu Hydraulic Pvt Ltd, a sister concern of the appellant, from the manufacturer themselves. The impugned order also held the impugned goods liable for confiscation under section 111(m) of Customs Act, 1962 while imposing fine of ₹ 20,00,000 in lieu thereof besides invoking section 112 of Customs Act, 1962 for imposition of penalties. The order [final order no. A/87852/2018 dated 6th November 2018] of the Tribunal disposing off the appeal [customs appeal no. C/1132/2007] had set aside the confiscation, as well as imposition of penalties thereon, while confirming the demand in the impugned order. 3. In appeal before the Hon ble Supreme Court, the apparent incongruity of the finding that there was no misdeclaration and the finding that circumstances did warrant invoking of the extended period afforded by section 28 of Customs Act, 1962 was the bedrock of the plea of the appellant as it also was in the application before the Tribunal referred to supra prior to recourse of appellate remedy provided for in section 130E of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months , the words five years were substituted. in section 28 of Customs Act, 1962, is to be determined by facts on record. The impugned order has clearly elaborated on the transactions that a sister concern had had with the manufacturer from whom the supplier of the appellant had sourced the impugned goods and that the variation in the transacted prices was within the knowledge of the authorized persons of the appellant-importer. The framework for valuation of imported goods for such difference in price to have the consequence of resort to rule 5 to rule 8 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 was also then existing. Invoking of the extended period for recovery of import duties that had been short-paid was contingent upon establishing that suppression/misrepresentation not of the value, necessarily, but of aspects that would have influenced invoking of the impugned Rules had occurred even as the transacted price may not have been exceeded but which, however, owing to Provided that (a) the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of consequent duty liability did not necessarily imply misdeclaration of value and it could well be the inexorable purpose of rule 4(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 that may have given rise to short payment owing to the transactional circumstances having been suppressed at the time of assessment with its own consequence. With the imposition of fine for redemption of goods that were not available for confiscation having been frowned upon in the decision of the Hon ble High Court of Bombay in Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc [2009 (248) ELT 122 (Bom)] and the Hon ble High Court of Madras in Visteon Automotive Systems India Ltd v. CESTAT, Chennai [2018 (9) GSTL 142 (Mad)], relied upon by Learned Authorised Representative, merely observed that the decision of the jurisdictional High Court does not apply to the case of the appellant before them, we are bound by the decision in the former to set aside the charging of redemption fine under section 125 of Customs Act, 1962. There is no evidence on record that the value declared by the importer is incorrect. Had the circumstances which prevailed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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