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TMI Blog2023 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... as received from China are, therefore, admissible in the evidence - there appears no doubt about the authenticity of documents as these were obtained by DRI through the Government channel and were obtained from the concerned Department of the exporting country. Whether appellant mis-declared the goods imported under the Bills of Entry? - HELD THAT:- The appellant had admitted the presence of five different rolls of Reflecting Sheets of different series TM 18 100 to have been sent by the exporter as samples, but still had not shown the same in the Bills of entry. This admission corroborates the Department s stand that the appellant despite having knowledge of the content of his consignment and the correct/export value of the goods in the said consignment, has failed to declare the same - vide letter dated 25.02.2010 the Chinese exporter has certified that appellant is their Customer for years for reflective sheets under Sablite brand. This document confirms the alleged mis-declaration as the said brand has not been declared in Bill of Entry. Though the price in said certificate is mentioned to be @ USD 0.48 per Sq. Mtr. but simultaneously the exporter has rescued itself fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity and the confiscation under section 111(m) must be upheld. The redemption fine of Rs. 5,00,000/- imposed under section 125 on the goods valued at Rs.64, 86,108/- is very fair and reasonable and calls for no interference. The appellant had, undisputedly, mis-declared the quantity of the goods imported in the Bill of Entry dated 9.2.2010. Shri Varinder Singh admitted in his statement that he had not declared five rolls of a different type which were also imported. Further, in respect of four of the past Bills of Entry, the values declared by the exporter before the Chinese authorities was much higher than the values declared in the Bills of Entry by the appellant - the appellant was liable to penalty under section 114AA and the penalty of Rs. 10,00,000/- was just and fair in the factual matrix of this case. The findings of the adjudicating authority below agreed upon - appeal dismissed. - HON BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND HON BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) APPEARANCE: For the Appellant : Mr. Bipin Kumar Sinha, Consultant. For the Respondent : Mr. Rakesh Kumar, Authorized Representative. DR. RACHNA GUPTA Present is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22.04.2018, 30.06.2018, 01.08.2018 and 27.10.2018 tabulated below were compared with the values declared for those very consignments of goods before the Chinese Customs authorities and the values declared in the Trade Declarations before the Chinese Customs were four times the values declared before the Indian Customs. In view of this response department formed the opinion that the importer undervalued their goods at the time of import to evade payment of customs duties. Sr.No. Container No. Invoice No. BOE No. Before Indian Custom (in USD) Before Chinese Customs (in USD) 1 TTNU1398469 HRS-DEC-0801 22.04.2018 12578.1 50528 2 FSCU3101101 HRS-DEC-0802 30.06.2018 12578.1 50528 3 FSCU3179141 HRS-DEC-0803 01.08.2018 16378 65274 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SCN) No. 29221 dated 30.08.2012 was served upon the appellant alongwith, inter alia, copies of the Trade Declarations filed by their supplier with the China Customs duly authenticated by the Indian Consulate alongwith their English translations. It was alleged that the importer-appellant had fraudulently suppressed the correct transaction value of the imported goods by fabricating import documents with intent to evade payment of appropriate duties of customs, while importing the same during the period 03.02.2008 to 09.02.2010. Hence the said SCN proposed to reject the declared value of Rs. 1,44,91,944/- (Rs. 15,41,722/- for Bill of Entry dated 09.02.2010+ Rs. 1,29,50,222/- of 15 Bills of Entry from 03.02.2008 to 09.02.2010) of Reflective Sheets imported by appellant during the said period and enhance it to Rs. 6,09,72,523/- demand and recover the differential duty under the proviso to section 28(1) of the Act alongwith interest under Sections 28AA and 28AB. The goods imported under Bill of Entry No. 87293 dated 09.02.2010 which were detained and provisionally released were proposed to be confiscated under section 111 (m) of the Customs Act, 1962. Goods imported under the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 28 from M/s. Decor Rubber Industries for the goods confiscated as discussed above alongwith the interest liable thereon under Section 28AA and erstwhile 28AB of the Customs Act, 1962 as amended. (v) I do not impose penalty under Section 112(a) and 112(b) of the Customs Act, 1962, on M/s. Decor Rubber Industries, A114/1, Wazirpur Industrial Area, New Delhi-110052, the Noticee No 1. (vi) I impose a penalty of Rs. 37,40,363/- (Rupees Thirty Seven Lakhs Forty Thousand Three Hundred Sixty Three only) under Section 114A of the Customs Act, 1962 on M/s. Decor Rubber Industries, A-114/1, Wazirpur Industrial Area, New Delhi-110052, the Noticee No 1. (vii) I impose a penalty of Rs. 10,00,000/- (Rupees Ten Lacs only) under Section 114AA of the Customs Act, 1962 on M/s. D cor Rubber Industries, A-114/1, Wazirpur Industrial Area, New Delhi110052, the Noticee No 1. (viii) I do not impose any penalty on Sh. Varinder Singh Chaudhary Prop. M/s Decor Rubber Industries, A-114/1. Wazirpur Industrial Area, New Delhi-110052, the Noticee No 2 under Sections 112(a), 112(b), 114(A), 114AA and 117 of the Customs Act, 1962 for the reasons discussed above. Being aggrieved, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal value declared before the Chinese Customs for the goods was different than the value in the invoices presented before the Indian Customs Authorities for the same goods in the same consignments. This change is sufficient to prove the forgery committed by the appellant to suppress the original value. Ld. Departmental Representative further submitted that the declarations received from China are authentic and they have been obtained through Consulate General of India alongwith English Translations. These documents sufficiently prove that the price declared before Chinese Customs was much higher than the price declared before the Indian Customs. Not only are these documents/declarations admissible but these are a sound basis for rejecting the transaction value under Rule 12 of the Custom Valuation Rules, 2007. Finally, submitting that the forgery nullifies everything, that the order under challenge is prayed to be upheld and appeal is prayed to be dismissed. 11. Ld. Departmental Representative has relied upon the following case laws:- 1. Martwin Electronics vs. Commissioner of Central Excise and Service Tax, Ahmedabad reported in 2016 (331) E.L.T. 85 (Tri.- Ahmd.). 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by, or to be in the handwriting of, any particular person, is in that person s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document. It is observed that the Export Declarations are obtained from the Customs and Excise Department, Hong Kong under the cover of their letter on letterhead and signature, through Commission for India (High Commission/Embassy) in Hong Kong. It is also stated by Hong Kong Customs that they have no objection for the said 25 Export declarations to be used as evidence in judicial proceedings in India. It is also seen that the Export Declarations are signed by Thomas Chan, Merchandiser and Fradu Wang, Accountant on behalf of the Batshita International Limited. It also contains a declaration that he is the exporter and the particulars given in the declaration are accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... China Customs in respect of the case being investigated by ICD, Tughlakabad clearly indicating massive undervaluation over 75% of the value by the appellant while importing the Reflective Sheets from China. The English translation has been marked on these Chinese Declarations. These, documents were received by DRI Headquarters on 15.09.2011 and by the ICD Tughlakabad on 12.10.2011, based on which a comparative chart was prepared by the department (RUD 5 of the SCN) as below: COMPARATIVE CHART OF DECLARATIONS BEFORE INDIAN CUSTOMS VIZ-A-VIZ CHINA CUSTOMS IN THE IMPORTS OF REFLECTIVE SHEETS FROM SHANGHAI PORT OF P.R. CHINA Sl.No. 1 2 3 4 5 1 Name of the importer D cor Rubber Industries Delhi D cor Rubber Industries Delhi D cor Rubber Industries Delhi D cor Rubber Industries Delhi 2 Name of the exporter Changzhou Hua R Sheng Reflective Material Co. Ltd., China Changzho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78.02 17. This chart was provided to the appellant on 15.11.2011. Copies of declarations received from Chinese Customs were sent to the appellant vide letter dated 23.11.2012. Nothing has been produced by appellant to Show that these documents were incorrect or that the declarations made before the Chinese Authorities were different. 18. The mode of procuring the documents during investigation and the absence of any other Export Declarations with the appellants is therefore sufficient for us to hold that the appellant has failed to rebut the presumption of correctness attached to these documents in terms of section 139 of the Customs Act. Appellant has not produced any other cogent document to show that price as was declared to the Chinese Customs was different from the price which is mentioned in the export declaration obtained by the department from China through Consulate General of India The Export Declarations as received from China are, therefore, admissible in the evidence. 19. In view of above discussion, there appears no doubt about the authenticity of documents as these were obtained by DRI through the Government channel and were o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to evade the legitimate duty of customs and the importer succeeded in his intention many times till the documents from overseas came to the notice of the Department. These overseas documents when compared with the details in the import documents it get clearly established that the importer has mis-declared the value of the goods at the time of import by forging the invoice. 23. We also observe that the appellant had admitted the presence of five different rolls of Reflecting Sheets of different series TM 18 100 to have been sent by the exporter as samples, but still had not shown the same in the Bills of entry. This admission corroborates the Department s stand that the appellant despite having knowledge of the content of his consignment and the correct/export value of the goods in the said consignment, has failed to declare the same. 24. Hence we don t find any reason to differ from the findings in the order under challenge with respect to the said quotation. We hold that the quotation of M/s. Surya Plastics has rightly been relied upon for the purpose of market inquiry. The decisions referred by the appellant are therefore held not applicable to the facts of the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) 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 of value for the purposes of this section: Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 of value for the purposes of this section. 31. The Customs Valuation (Determination of Value of imported goods) Rules, 2007 [Rules] were framed as per the second proviso to sub-section 1 of section 14. It has 13 Rules in all of which Rules 1 and 2 are Preliminary rules. Rule 3 states that subject to Rule 12, the value shall be the transaction value adjusted according to Rule 10. Rule 10 provides for certain costs to be included in the transaction value. Rule 12 provides for the proper officer to reject the transaction value if he has reason to doubt its truth and accuracy. Thus, unless the proper officer rejects the transaction value under Rule 12, the valuation has to be based on transaction value as per Rule 3 with some additions, if necessary, as per Rule 10. 32. If the transaction value is rejected under Rule 12, then it must be determined sequentially under Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so chooses, computational method may be adopted without examining the deductive method first (Rule 6). h) If the transaction value is rejected and there is no value of identical goods or similar goods and if it is also not possible to determine the value through deductive method or computational method, then value may be determined through the residual method by the officer following the above principles (Rule 9). 34. The next question which arises is when can the proper officer reject the transaction value. Rule 12 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in explanation 1 (iii) to Rule 12. The list is inclusive and not exhaustive. 36. While examining the issue No. 1 we have already held that the export declarations are admissible into evidence. Similarly, while examining issue No. 2, we held that the quotation obtained during market enquiry is admissible as evidence. Of the fifteen Bills of Entry, the Commissioner only re-determined the value of the goods in respect of five and did not re-determine the value in respect of the remaining ten Bills of Entry. These five Bills of Entry included the Bill of Entry dated 9.2.2010 and four past Bills of Entry in respect of which the transaction values could be obtained from the Chinese authorities through Consulate General of India from the declarations made by the exporter to Chinese Customs. 37. As far as the Bill of Entry dated 9.2.2010 is concerned, the Commissioner rejected the transaction value, firstly because, while the invoice and the Bill of Entry declared only 1219 rolls of TM 3200, on examination, it was found that there were five additional rolls of TM 1800 which were not at all declared in the invoice and in the Bill of Entry. Shri Virendar Singh, owner of the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 40. In the impugned order, the Commissioner confiscated goods imported under the Bill of Entry dated 9.2.2010 which were seized and provisionally released on execution of a bond under section 111(m) but she refrained from confiscating the goods imported under the past Bills of Entry. Since the undisputed fact is that the goods imported in the Bill of Entry were not fully declared and five additional rolls were imported but not declared and also since we found that the value declared in this Bill of Entry was correctly rejected under Rules 12 and re-determined under Rule 4, we find that there was mis-declaration of the goods both in terms of value and quantity and the confiscation under section 111(m) must be upheld. The redemption fine of Rs. 5,00,000/- imposed under section 125 on the goods valued at Rs.64, 86,108/- is very fair and reasonable and calls for no interference. 41. In the impugned order, the Commissioner did not impose any penalty on the owner of the appellant. She also did not impose any penalty on the appellant under section 112 but imposed penalties under section 114 A and 114AA. 42. The penalty under section 114A is a mandatory penalty and is equal to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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