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TMI Blog2024 (9) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... e statement of Director (Finance) of another rival Company even if is to be relied upon same has to be backed with import data. It is found that no such exercise has been carried out by the department in instant matter and in the absence of same, appellants cannot offer effective reply. Further, some of the products that do contain proteins do not prima facie merit consideration under T.H 21069099. Same needs detailed Consideration. The matter deserves to be re-considered by the adjudicating authority by offering a proper opportunity, as well as relevant import data/ documents as may be relied upon by the department and required in defence by the party - Appeal is allowed by way of remand. - MR. RAJU, MEMBER (TECHNICAL) AND MR. SOMESH ARORA, MEMBER (JUDICIAL) Shri. Pratik Karande for the Appellant Shri Girish Nair, Assistant Commissioner (AR) for the Respondent ORDER Intelligence gathered by Directorate of Revenue Intelligence, Mumbai Zonal Unit (hereinafter also referred to as Port Intelligence, Mumbai) showed that certain importers of 'Nutritional Supplements' classifiable under Customs Tariff Item No. 21061000 and chargeable to Customs duty @ 30%/40% Basic Customs Duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the Nutritional items which were imported by her were having origin in America. During the course of Statement of Smt Manisha U Bathina recorded on 22.04.2019 and 18.10.2021, she had also admitted to the undervaluation in respect of the import of the Nutritional Supplements which were warehoused at KASEZ and subsequently cleared for home consumption from there. The importer, thereafter had worked out the value of the imported goods in respect of the goods where they had indulged in undervaluation and submitted a statement showing differential duty of Rs.12,25,602/- as payable by MVR and voluntarily paid part differential duty amounting to Rs. 12,25,602/ vide Demand Draft Nos.375835 dated 11.04.2019 and 376603 dated 08.05.2019 issued by Canara Bank, J.B. Nagar, Andheri (East), Mumbai. Thus, in all these cases, the importer herself had admitted to the undervaluation of the transaction value. Smt. Manisha U. Bathina has also admitted that the cash generated in respect of the undervalued goods was collected from her by the supplier. However, the importer could not furnish as per the department the corresponding documents as the imports were done in connivance with their suppliers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly from the United States of America to India. It was further found in respect of Nutritional Supplements where the importer had indulged in mis-classification while importing the goods at KASEZ, that the values presented to the Customs authorities while clearing these goods were also understated values in as much as they were also imported from the same suppliers and on comparison with the contemporaneous values of identical goods, it was found that they are also undervalued. The importer M/s. MVR had admitted to the above undervaluation and had voluntarily paid a part of the differential Customs duty evaded by them in respect of some of the consignments. Hence, in view of the above, recourse to Rule 4 of the CVR, 2007 was taken in respect of all the imports of Nutritional Supplements where contemporaneous value of the identical goods was available. The details of all such goods, where contemporaneous value of identical goods have been taken for re determination of the value of the imports of M/s. MVR, were mentioned in the Show Cause Notice. 3.4 It was also found that the importer M/s. MVR had imported Whey Proteins of brand ON and BSN manufactured by M/s Glanbia Performance N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRI/MZU/B/Int/09/2020 dated 24.12.2020 (RUD-07) had been issued to the importer M/s. Pearl International. Thus, the re-worked actual values on the basis of actual invoice value retrieved from M/s. Pearl International, as mentioned in the said Show Cause Notice, found to be the correct contemporaneous value at which the said Nutritional Supplements of the Dymatize brand was imported by M/s. MVR. 4. QUANTIFICATION OF DIFFERENTIAL VALUE 4.1 In view of the evidences revealed during investigation, as described above, the declared value appears liable for rejection to the department under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (CVR, 2007) read with Section 14 of the Customs Act, 1962. The declared value, therefore, merits re-determination under CVR, 2007. In this case, it was found that the value of the goods mentioned are on CIF basis and the same has been taken for working the difference of values. 4.2 Thus, the importer appeared liable to pay the differential duty on the ascertained differential value determined under Rule 4 of the CVR, 2007 for their various imported goods to the department. They also appeared liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of 3,66,59,829/- (Rupees Three Crores Sixty Six Lakhs Fifty Nine Thousand Eight Hundred and Twenty Nine Only) as mentioned in Annexure A Annexure B to this notice should not be held liable for confiscation under section 111(m) of the Customs Act, 1962; vi. Penalty should not be imposed on them in terms of Section 112 (a) and Section 112(b) of the Customs Act, 1962; vii. Penalty should not be imposed on them in terms of Section 114A of the Customs Act, 1962; viii. Penalty should not be imposed on them in terms of Section 114AA of the Customs Act, 1962; ix. An amount of ₹12,25,602/- (Rupees Twelve Lakhs Twenty Five Thousand Six Hundred And Two Only) voluntarily paid by M/s. MVR vide Demand Draft Nos.375835 dated 11.04.2019 and 376603 dated 08.05.2019 issued by Canara Bank, J.B. Nagar, Andheri (East), Mumbai should not be appropriated against the differential duty and interest payable by the importer. 5. A detailed reply dated. 15.12.2022 was filed by he appellant rebutting foregoing allegation. However, show cauase notice was upheld by the Commissioner and feeling aggrieved by the order, appellant has preferred the present appeal. 6. The Learned AR reiterates the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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