9911796707
TMI Blog2024 (5) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... ong Kong. The calculator parts that were imported by Zippo Mobiles under the Bills of Entry dated 20.02.2018 were found to have been stored in the warehouse of Banke Bihari. The Principal Commissioner has also considered the statement made by Dinesh Udhwani that the goods imported through the Bill of Entry dated 24.03.2018 had been sold out was not correct. It also transpires that the nature of the goods that were imported had matching quantities. Banke Bihari had along with other parts also imported polybags, colour boxes and two pressing machines for calculators. Zippo Mobiles also imported cartons for calculator with front and back covers. The Principal Commissioner was, therefore, justified in recording a finding that the intention was to assemble the calculators from the parts that were imported. Infact, it is also clear that Zippo Mobiles had never imported the parts and that the two consignment of plastic part for calculators arranged by Dinech Udhwani were the first import. It is, therefore, more than apparent that Banke Bihari had imported parts of calculator through Bills of Entries so as to assemble the parts to form the calculator only to avoid anti-dumping duty. Anti-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e actual transaction value of the same model found from the email of Dinesh Udhwani was taken to be the transaction value under the provisions of rule 5 of the 2007 Valuation Rules. Thus, the total assessable value in respect of the goods covered under the Bill of Entry No. 6460501 dated 21.05.2018 was arrived at Rs. 49,29,000/- (total value of the goods= Rs. 16.43x3,00,000 units i.e. Rs. 49,29,000/-). It needs to be noted that 1.58 RMB is equal to Rs. 16.43 as per exchange rate of RMB in the show cause notice. Undervaluation of High lumin LED Emitting Diode under the Bill of Entry No. 6675087 - higher values of high lumin LED Emitting Diode 5 MM (Red, Green-S, Blue-S, White, White-S, RG-S, Blue, White-0.25w, White-0.75W) were found in the document containing 23 pages retrieved from email account. When asked to explain, Dinesh Udhwani admitted that the quantity, description, date were matching with the invoices/packing list with Bills of Entry, but he feigned ignorance about the document and denied any connection with the imports. These documents recovered from his email, along with other documents like commercial invoices from Zippo Mobiles indicating details of containers related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Held that the goods imported under Bills of Entry No s. 5292485, 5716603 and 5632744 are liable for confiscation under section 111(m) of the Customs Act, 1962 [the Customs Act]; (v) Imposed penalty upon Banke Bihari and Zippo Mobiles under sections 114A and 114AA of the Customs Act; and (vi) Imposed penalty upon Zippo Mobiles under section 112(a) of the Customs Act. 3. It transpires from the record that Banke Bihari is engaged in the import and trading of various electronic items namely diodes, parts of remote control and parts of calculators. It had filed a Bill of Entry No. 5291267 dated 20.02.2018 for import of calculator parts namely Printed Circuit Board [PCB] for calculators with display (1,81,800 pieces), pressing machines (2 pieces), crews (3,70,000 pieces), button cells (1,81,800 pieces), sponge (124 kg), poly bag (165 kg) and colour box (3503 kg). The said Bill of Entry No. 5291267 dated 20.02.2018 was filed on the basis of a Commercial Invoice No. JM20180118 dated 16.01.2018 received from the Chinese Supplier M/s. Panda Technologies Ltd. China. 4. Zippo Mobiles also imported 1,80,440 pieces of plastic front covers and 182096 pieces of plastic back covers of calculator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reply to the show cause notice stating inter alia that calculator parts were imported for trading purposes only and it cannot be urged that complete set of calculators could be formed and that the enhancement of value of DVD remotes and diodes was not correct. 12. The Principal Commissioner, however, passed the order dated 16.01.2020 holding that the parts of calculators imported under the four Bills of Entry by Banke Bihari and Zippo Mobiles should be clubbed as calculators in CKD condition and so anti-dumping duty shall be imposed upon the calculators in terms of the notification dated 29.05.2015. Penalties were also imposed under sections 114A, 114AA and 112(a) of the Customs Act upon Banke Bihari and Zippo Mobiles. 13. The Principal Commissioner noticed that Banke Bihari and Zippo Mobiles had filed two Bills of Entry on 20.03.2018 and, thereafter, they filed two Bills of Entry on 24.03.2018 and 19.03.2018. The parts of calculators under the aforesaid four Bills of Entry and their quantities imported indicated almost matching quantities for assembly of complete calculators and there was import of even packing material for calculators as well as the two pressing machines for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts even the commercial invoice number in the Bills of entry was found to be same. M/s. BBEPL, along with other parts, has also imported poly bags colour boxes and two pressing machines for calculators. M/s. Zippo mobiles has also imported cartons for calculator along with front and back covers. This clearly indicates that the intention of said import was for the purpose of assembly of complete calculators. The parts like front and back cover for calculators would be for specific models of calculator and cannot be possibly traded in market as general parts. Thus, I do not find the contention of the noticee no. 1 and 4 that the above parts have been imported for trading, as correct. The fact that M/s. Zippo Mobiles has never imported any goods in the past and the present two consignments of plastic part for calculator arranged by Shri Dinesh Udhwani were their first imports, further points to the fact that these parts were closely linked with the two consignments imported by Noticee No. 1, which were deliberately imported under separate Bills of entry, by splitting up the parts, to evade anti dumping duty. 37. xxxxxxxxxxx. The nature and quantity of the parts imported by Noticee No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to be 703 . Shri Dinesh Udhwani admitted in his statement dated 15.11.2018 that they had received goods as per their order i.e. 703A 703B and also accepted after seeing the packing list that it appears that models 703, 703A 703B of DVB remote were the same. I find that the values for the parts of DVB remotes declared in subsequent Bills of Entry Nos. 6675435 6675908 both dated 05.06.2018 which have been filed after the interdiction of said Bill of Entry No. 6460501 dated 21.05.2018 have been substantially higher and the cumulative price of the complete unit of DVB remote parts when added together indicates that the price declared in the above bill of entry has been undervalued to evade the payment of appropriate Customs Duty. The importer though claimed that there was revision of price but could not give any evidence or plausible reasons. xxxxxxxxxx 43.7 As regards alleged undervaluation of High Lumin LED Emitting Diode under Bill of Entry No. 6675087 dated 05.06.2018 filed by M/s. Banke Bihari Electronics Pvt. Ltd. I find that higher values of High Lumin LED Emitting Diode (5MM (Red, Green-S, Blue-S, Whit-S, RG-S, Blue, White-.025w, White-0.75W) were found on pages 6 to 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds imported under the four Bills of Entry are calculators in CKD conditions is perverse because neither Banke Bihari nor Zippo Mobiles had imported keypads and plastic buttons which constitute vital parts of a calculator; (iv) In any view of the matter, anti-dumping duty could not have been imposed on the basis of the Notification dated 29.05.2015 as the said Notification does not provide for levy of anti-dumping duty on calculators in CKD condition or parts thereof; (v) The Principal Commissioner committed an error in rejecting the transaction value and then re-determining it on the basis of documents retrieved from the email account of Dinesh Udhwani. These documents are in mixed languages and Dinesh Udhwani had also explained the price of the goods; (vi) The onus to prove under-invoicing is on the Revenue and unless it is demonstrated with cogent and valid evidence that the invoice value is vitiated, the value has to be accepted under rule 3 of the Customs Valuation Rules 2007 [the 2007 Valuation Rules]; and (vii) The Principal Commissioner was not justified in confiscating the goods and imposing penalty upon Benke Bihari and Zippo Mobiles; 18. Shri Nagendra Yadav, learned autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.05.2018 and Diodes under Bill of Entry No. 6675087 dated 05.06.2018 and whether the rejection of declared assessable value and re-assessment thereof by the Principal Commissioner is correct; (D) Whether the differential duty, as confirmed by Principal Commissioner, is sustainable; (E) Whether confiscation of goods and imposition of penalty ordered by Principal Commissioner is sustainable. 21. Each of the aforesaid five issues are considered separately. A 22. It is evident that the two consignments imported by Banke Bihari and Zippo Mobiles through two Bills of Entry, each dated 20.02.2018, have the same invoice number and have a common supplier. The purchase orders for both the importers were placed by Dinesh Udhwani to the same supplier M/s. Pandas Technology Ltd., Hong Kong. The statement made by Dinesh Udhwani on 18.04.2018 reveals that he had placed two separate orders for calculator parts; one was for PCB plate, screw, cell, packing material and the other was for housing of calculator. The statement also reveals that Dinesh Udhwani was aware that the import of calculators from China invited anti-dumping duty and it was for this reason that he imported calculator in CKD cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the calculator have been imported under the four consignments. The parts imported by Banke Bihari inter-alia contain PCB assembly (having in built cell bracket) and button cell for calculator. The impugned button cell is found to be compatible with the PCB assembly imported in the Bill of Entry as the same fits in the cell bracket present at the back side of the PCB assembly. The representative sample subjected to test checking has shown that when the button cell is inserted into PCB assembly and PCB assembly is operated manually by pressing fingers against keypad area of the PCB assembly, the PCB assembly is capable of performing operations and the same starts showing on the display screen attached to the PCB assembly. The PCB assembly (having in-built cell bracket) connected with display along with button cell, therefore, provides the essential character of the complete or finished article. As per of rule 2(a) of the Interpretative Rules to the First Schedule to the Tariff Act, it is not necessary that all the parts/components of article must be present to merit classification as a complete article. It will still be classified as a complete article if the parts, which are present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles but also to incomplete articles or articles, unassembled or disassembled, if as presented the incomplete article has the essential character of the complete article. In other words, the scheme of levy of anti-dumping duty under the Customs Tariff Act, 1975, does not envisage or prescribe a separate set of principle of classification for the purposes of the said levy. The General Rules of Interpretation of the Tariff would apply equally for the levy of basic Customs duty under the Customs Act, Additional Duty of Customs under Section 3 of the Customs Tariff Act as well as Anti-dumping duty under Section 9A of the Customs Tariff Act. Therefore, the contention of the appellant about the inapplicability of Rule 2(a) of the general interpretative rules for levy of anti-dumping duty has to be rejected as it is contrary to the statutory provisions, which are loud and clear. It has also been contended that since the anti-dumping investigation and levy initiated in 2008 specifically mentioned CFL in CKD/SKD form, it has to be presumed that the said goods imported in the said form were not covered in the earlier investigation and levy made in 2002. We have already held that as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the allegation of undervaluation of DVB remote in CKD under Bill of Entry No. 6460501 dated 21.05.2018 filed by Banke Bihari, it was found that model number was not declared in the Bill of Entry. However, when seen from the packing list, the model of the DVB remote (both the large and small size) was found to be 703. Dinesh Udhwani admitted in his statement dated 15.11.2018 that the goods had been received as per the order i.e. 703A and 703B and also accepted, after seeing the packing list, that it appears that models 703, 703A and 703B of DVB remote were same. The values for the parts of DVB remotes declared in the subsequent Bills of Entry Nos. 6675435 and 6675908, both dated 05.06.2018, which have been filed after the interdiction of said Bill of Entry No. 6460501 dated 21.05.2018 are substantially higher and the cumulative price of the complete unit of DVB remote parts when added together indicates that the price declared in the above Bill of Entry had been undervalued to evade the payment of appropriate Customs Duty. The appellant claimed that there was revision of price, but the appellant could not give any evidence or plausible reason. It was also found from the 23 page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were obtained from the same Chinese supplier i.e. Jiangxi MST Electronics Technology Co. Ltd. Thus, the declared value of said high lumin LTD Emitting Diode (5MM (Red, Green-S, Blue-S, White, White-S, RG-S, Blue, White-0.25w, White-0.75W) under Bill of Entry No. 6675087 dated 05.06.2018 is not correct and was correctly rejected in terms of rule 12 of the 2007 Valuation Rules. As no values of identical goods were unearthed during investigation, the transaction value of the same goods found from email of Dinesh Udhwani was correctly taken to be the transaction value under the provisions of rule 5 of the 2007 Valuation Rules. D 30. As it has been found as a fact that Banke Bihari had undervalued DVD remotes and diodes, the Principal Commissioner was justified in requiring Banke Bihari to pay the differential duty. E 31. The Principal Commissioner found is a fact that Banke Bihari actively connived with Zippo Mobiles and filed separate Bills of Entry by splitting the consignment. Thus, a wrong declaration was furnished by mis-classifying the goods with intent to evade anti-dumping duty. The seized goods were, therefore, liable to confiscation under section 111(m) of the Customs Act. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
