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TMI Blog2023 (11) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 6,13,145/- for 9400 pieces of Diaphragm Boost Pump of 'E-Chen' brand shifted in 940 Cartons. 2. The goods of the said Bill or Entry were examined 100% by SIIB officers and the entire proceedings were recorded under Panchnama dated 13.04 2016 (RUD-2) drawn on the spot in presence of two independent witnesses, representative of importer and G-Card holder of CHA firm. There was no variation in quantity of goods vis-à-vis declared quantity. However, the goods were detained for further investigations on a reasonable belief that the subject goods were undervalued with an intent to evade payment of customs duty. Representative sample was drawn as per procedure. The container was again stuffed with the same goods and sealed with Custom Seal No. 324531. On completion of examination proceedings the F-Cardholder Sh. Tapasvi Singh, was advised to ask the importer to get the goods stored in the Customs Bonded Warehouse under Section 49 of the Customs Act, 1952 to avoid incurring of demurrage and detention charges of the container. 3. On the basis of authorization dated 21.04.2016 (RUD-3) issued by Sh. Sumit Aggarwal proprietor of M/s Shree Shyam Enterprises, Sh. Sanjeev Garg, Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 8/03/2016, 4233475 dated 12/02/2016 & 3872308 dated 11/01/2016 under Rule 12 of the Customs Valuation (Determination of value of the Import goods) Rules, 2007 read with Section 14 of the Customs Act, 1962 and to be re-determined as Rs.74,59,370/- in case of Bill of Entry No. 4873621 dated 12.04.2016 (live Bill of entry) and value of Rs.4,37,24,283/- in case of past imports in terms of Rule 7 of the Customs Valuation Rules, 2007 read with Section 14 of the Customs Act. 1962 (ii) The differential Customs duty amounting to Rs13,59.354/- in case of live Bill of Entry and differential duty of Rs.79,52,547/- in case of past imports was proposed to be confirmed and recovered with interest with appropriation of differential customs duty of Rs. 13,59,354/- deposited vide TR-6 Challan no 36653 dated 13/05/2016 deposited towards. Goods were proposed to be confiscated. Penalties were also proposed under Section 114A of the Customs Act 1962 on M/s Shree Shyam Enterprises. Discharge of duty liabilities under Bill of Entry No. 4873621 dated 12/04/2016 should not be appropriated against the said duty demand. 5. The said proposal is confirmed vide Order-in-Original No.05/2018 dated 09.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Colour Lab 1992 (62) ELT 613 (Tri.) and Digitech Photocopier Vs. Commissioner of Customs. Mumbai - 2009 (233) ELT 425 (Tri. - Del.). 11. The ld. Counsel further mentioned that it is settled proposition of law that in absence of any contemporaneous import, mere internet price is not reliable evidence to discard the transaction value. Decision in the matter of Aggarwal Distributors (P) Ltd. Vs. Commr of Customs. New Delhi-2000 (117) ELT 49 Tribunal) [confirmed by Hon'ble Supreme Court-2000 (122) ELT A121 (SC)] is relied. It is also submitted that it is well settled that the onus of proof relating to undervaluation is on the Revenue which has not been discharged. But no evidence of collusion, willful mis-statement or suppression of facts has been adduced by Department, levy of penalty under said section, can in no way be countenanced. No parallel invoice or other incriminating document was recovered. 12. Deductive Value of the goods as determined under Rule 7 of CVR, 2007 without following the provisions as laid therein has also been objected. 13. It is finally submitted that Shri Sanjeev Garg is only an Authorised Representative in the matter. He had rendered statements as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The authority is thus 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 higher price at or around the same time or if the buyers and sellers are related to each other. In order to invoke such a provision it is incumbent upon the Assessing Officer to give reasons as to why the transaction value declared in the Bills of Entry was being rejected; to establish that the price is not the sole consideration; and to give the reasons supported by material on the basis of which the Assessing Officer arrives at his own assessable value. 17. In South India Television (P) Ltd., the Court explained as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 3 (S.C.), Chaudhary Ship Breakers v. Commissioner of Customs, Ahmedabad, (2010) 10 SCC 576 = 2010 (259) E.L.T. 161 (S.C.) and Commissioner of Customs, Vishakhapatnam v. Aggarwal Industries Ltd., (2012) 1 SCC 186 = 2011 (272) E.L.T. 641 (S.C.). 19. Revealing to the facts of present case, we observe that the appellants have imported 4 consignments of Diaphragm Boost Pump in the past and one live consignment was detained by the Department for investigation. It is a matter of record that the following facts have emerged in the course of investigation on the basis of which show cause notice was issued to the appellant importing firm: (i) That the value of the identical goods for the contemporary import period on the e-bay and an Alibaba Web based trading firm is indicating the value of the imported goods @ U.S. $ 17 to 18 per piece while the declared value of the live consignment as well as of the previously imported consignment was declared U.S. $ 3.58 CIF per piece; (ii) During the investigations the representative of the importing firm have also been confronted with the available price of the import consignment goods at E- bay and Alibaba and Shri Sanjeev Garg, Authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the manner of calculating the assessable value and differential duty. 9. It is settled position of law that the facts which are admitted need not be proved. In the case of CCE, Madras v. Systems & Components Pvt. Ltd. 2004 (165) E.LT. 136 (S.C.), the Hon'ble Apex Court in para 5 of the order has observed as follows: ".....Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use, there is no need for the department to prove the same. It is a basic and settled law what is admitted need not be proved". 10. Further, this Tribunal in the case of Jai Shiv Trading Company vide F. O., dated 20-7-2017 has observed as follows: "The appellant has also challenged that valuation adopted by the customs authorities. From record, it is seen that such redetermination of value has been carried out in terms of Rule 7 of the Customs Valuation Rules which provides for determination of value on the basis of the price of identical or similar imported goods in India. It is further seen from records, that the proprietor of the appellant, Sh. Jayshiv, was shown the market ..... 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