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TMI Blog2024 (10) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... alue. Also, he has not furnished the details of the Bills of Entry where higher value has been adopted. The ld. adjudicating authority has also not followed the valuation rules in a systemic mannerto re-determine the Assessable value, by stating that it will be in conflict with the intelligence about the rampant under-invoicing as alleged in paragraph 14.4 of the notice. In the impugned order, it has been admitted that none of the Rules from Valuation Rule 4 to Rule 8 are applicable and valuation has been done under Rule 9 of the valuation rules - the declared value in the Bills of Entry cannot be rejected on the basis of some details mentioned in the Proforma Invoice and documents attached with the said email. Penalty imposed on Shri Sanjay Mehta, Partner of the Appellant-company - HELD THAT:- It is observed that the ingredients required for imposing penalty on him under Section 114AA of the Customs Act are not existing in this case. Accordingly, the penalty imposed on him is liable to be set aside. The impugned order is set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) And HON BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Sudhir Kumar Mehta, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty of Rs. 50,00,000/- has also been imposed on Shri Sanjay Mehta, Partner of the appellant-company, under Section 114AA of the Customs Act. 2.3. Aggrieved against the confirmation of differential customs duty, interest and penalties, the appellants have filed these appeals. 3. The appellants submit that the initial investigation was conducted by DRI, Bangalore and they could not find any undervaluation; subsequently, when the case was transferred to DRI, Kolkata, they started fresh investigation; DRI Kolkata presented two documents: one was a mail allegedly found with one Mr. Mahesh Agarwal at Bangalore and another was a proforma invoice in the name of Jaiswal Trading Company. It is submitted that on the basis of these documents, the officers of DRI, Kolkata alleged that the appellant has undervalued the goods imported through the 130 Bills of Entry; the Department alleged that in the mail, the appellant has guided his friend company, namely, M/s. Sleek Corporation, Bangalore to disclose lower value and gave his declared value before the Customs at Kolkata. It is also pointed out that it was also alleged that the proforma invoice of Jaiswal Trading Company shows a much higher v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be rejected. Further, it is the contention of the appellant that the items mentioned in the price list were not comparable to the imports of the appellant-company. In this regard, the appellant also submits that on the basis of the statement and price list typed on a plain sheet, the transaction value declared by them in the 130 Bills of entry cannot be rejected. In this regard, the appellant relied on the decision of the Hon ble Supreme Court in the case of Eicher Tractors P. ltd. reported in 122 ELT page 321. 3.3. The appellant further submits that in the impugned order, it has been admitted that there was no contemporaneous import available; in the impugned order, Rule 9 has been applied in a bizarre manner, without looking into the part, without looking into the model, without looking into the items imported. Thus, the appellant submits that Rule 9 could not have been applied under these circumstances. Accordingly, the appellant submits that the transaction value declared by them in the 130 Bills of Entry should not have been rejected based on the documents whose genuineness is in doubt. 3.4. The appellant also submits that impugned order has been passed without challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the email and the invoice attached to it were recovered. The ld. adjudicating authority has not given any findings in the impugned order on these allegations made against the appellant. Thus, we observe that the Department has failed to establish the genuineness of the invoice. 6.2. We find that the Department has alleged that in the said mail, the appellant has guided their friend company namely, M/s Sleek Corporation, Bangalore to disclose lower value and gave the declared value before the Customs, Kolkata. We observe that there is no evidence to substantiate this allegation. Thus, in the absence of any evidence to establish the authenticity of the email, we hold that the invoice attached with the mail cannot be relied upon to reject the value declared by the appellant. 6.3. It was also alleged that the proforma invoice of Jaiswal Trading Company shows much higher value. The appellant as stated in its defence that there is no Jaiswal Trading Company known in the trade and the appellant has been falsely implicated by fabricated Page 10 of 16 Appeal No(s).: C/76862 76862/2019-DB documents. The appellant asked the interrogating authority to find I.E. code number of Jaiswal Tradi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on value. A discount is a commercially acceptable measure, which may be resorted to by a vendor for a variety of reasons including stock clearance. A price list is really no more than a general quotation. It does not preclude discounts on the listed price. In fact, a discount is calculated with reference to the price list. Admittedly in this case discount up to 30% was allowable in ordinary circumstances by the Indian agent itself. There was the additional factor that the stock in question was old and it was a one time sale of 5 year old stock. When a discount is permissible commercially, and there is nothing to show that the same would not have been offered to any one else wishing to buy the old stock, there is no reason why the declared value in question was not accepted under Rule 4(1). 23.In the circumstances, production of the price list did not discharge the onus cast on the Customs authorities to prove that the value of the 1989 bearings in 1993 as declared by the appellant was not the ordinary sale price of the bearings imported. 6.5. We observe that in the impugned order the transaction value declared by the appellant was rejected on the basis of some contemporaneous impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... message, he had explained that the manufacturer of the impugned goods was getting export rebates and, therefore, it is possible that the manufacturer had over-invoiced the price in order to claim more rebate. The goods were of Chinese origin. In the Fax message it is further stated by the foreign supplier that he was required to show the export value on the higher side in order to claim the incentives given by his Government. This explanation of the foreign supplier, in the present case, had been accepted by the Commissioner. In his order, the Commissioner has not ruled out over-invoicing of the export value by the foreign supplier in order to obtain incentives from his Government. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal. 6.6. From the impugned order, we observe that not a single bill of entry of identical imports at higher value has been cited. On the contrary, we observe that the appellant has cited several imports mentioned in the chart at page 231 Volume II and enclosed invoices and bill of entry from pages 232 to 476 which are identical and of near same value. However, no findings have been given by the ld. adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 2012 and 2014. All the Bills of Entry were assessed/ reassessed to duty by accepting the transaction value declared by the appellant in the respective Bills of Entry. We observe that the Assessment Orders have not been challenged and hence they became final. We agree with the submission of the appellant that demand cannot be raised without challenging the assessment orders. In this regard, we rely upon the decision of the Hon'ble Apex Court in the case of ITC vs. Commissioner 368 ELT page 216(SC). Relying upon this decision, this Tribunal has held the same view in the case of Rumen Dey vs. Commissioner 386 ELT page 894 (KOL). The relevant part of the said decision is reproduced: 10. We observe that the self-assessment of the Bills of Entry by the importer was not challenged by the department. The Hon ble Supreme Court in the case of ITC Ltd., has held as under : When we consider the overall effect of the 47. provisions prior to amendment and post amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self assessment is modified in accordance with law by taking recourse to the appropriate proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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