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TMI Blog2024 (11) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... alue and the owner of the appellant firm was summoned who, in his statement, admitted the mistake. It is not the case that the appellant had provided any invoice for the goods which were actually imported, .i.e., those whose thickness was 0.38 mm to 0.45 mm. We, therefore, find that the officer had reasonable doubt regarding the truth and accuracy of the transaction value and has correctly rejected it. Having rejected the transaction value under Rule 12, he found that there were no imports of identical goods and hence the value could not be determined under Rule 4 and therefore, proceeded to determine it under Rule 5. These proposals were incorporated in the SCN and the appellant was given adequate opportunity to submit its defence. We, therefore, find no force in the submission of appellant that the adjudicating authority should have determined the value under Rule 4. When it is specifically recorded that there were no imports of identical goods and the appellant also did not produce any evidence to the contrary till now, Rule 4 could not have been and has correctly not been applied. Consequently, the value was determined under Rule 5. We find that the Commissioner (Appeals) was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Special Intelligence and Investigation Branch SIIB examined the consignment and found that the quantity of the goods was as declared but the fabric which was imported was of much higher thickness ranging from 0.38mm to 0.45 mm. Samples of the goods were sent for testing to the Central Revenue Control Laboratory CRCL who sent their test reports stating that the goods were of thickness 0.38 mm to 0.45 mm. 3. The imported goods were seized under section 110 of Customs Act, 1962 the Act under the belief that the goods were liable for confiscation under section 111 of the Act and the statement of the owner of the importer was recorded and the matter was investigated. In his statements given under section 108 of the Act, Shri Shikhar Mahajan, owner of the appellant firm accepted the test report of CRCL and admitted their mistake and sought provisional release of the seized goods. 4. The Bill of Entry, the invoice and other documents submitted by the appellant declared the goods to be of 0.3 mm while the goods which were imported were of much thicker varying from 0.38 mm to 0.45 mm. Therefore, the declared transaction value was rejected under Rule 12 of the Customs (Determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing S. No. 37021LG007213 dated 04.09.2013 for Rs. 8,00,000/- against the redemption fine being imposed under section 125 of the Customs Act, 1962 and against penalties being imposed under section 112 (a) and section 114AA of the Act, ibid . 7. On appeal by the appellant, the Commissioner (Appeals) upheld the OIO. Submissions on behalf of the appellant 8. Shri Aman Ahluwalia, learned counsel for the appellant made the following submissions : a) The appellant had placed an order for polyester fabric with PVC coating of thickness 0.3 mm only and therefore, all documents showed the same description. It had correctly described the same thickness in the Bill of Entry and therefore, there was no mis-declaration at all. b) It s overseas supplier had wrongly sent to it goods of much higher thickness and the appellant cannot be penalized for that action of the overseas supplier. c) Therefore, the goods were wrongly confiscated under section 111(m) and penalty under section 112 was also wrongly imposed on the appellant. d) Penalty under section 114AA is attracted only if there is intent. In this case, the appellant had declared in the Bill of Entry the goods which it had imported honestly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption on a modest fine of Rs. . h) Penalty under section 112 follows the confiscation under section 111(m) and the amount of penalty of Rs. 3,00,000/- imposed on the appellant is quite reasonable and calls for no interference. i) Penalty under section 114AA can be imposed if there was intentional mis-declaration. The intent can only be inferred from the facts surrounding it. In this case, the appellant s argument was that it had ordered for only 0.3 mm fabric but the supplier sent the wrong goods of higher thickness. If that is true, the natural response of the appellant would have been to re-export the goods. Instead, the appellant sought provisional release of the goods which shows that the appellant intentionally mis- declared the goods in the Bill of Entry. Therefore, the penalty under section 114AA is just and fair. j) In view of the above, the appeal may be dismissed and the impugned order may be set aside. Findings 10. We have considered the submissions advanced by learned counsel for the appellant and learned authorized representative for the Revenue and perused the records. 11. The undisputed facts are that the appellant had filed the Bill of Entry and produced invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce produced by the appellant, therefore, does not correspond to the goods. 15. The transaction value can be rejected under Rule 12. If the proper officer has some reason to doubt the truth and accuracy of the transaction value he can call for information and on receiving such information or if the information is not provided, the proper officer still has a reasonable doubt about the truth and accuracy of the transaction value, it shall be deemed that the valuation cannot be done as per the transaction value. The discrepancy between the goods declared and goods actually imported gave the officer reason to doubt the transaction value and the owner of the appellant firm was summoned who, in his statement, admitted the mistake. It is not the case that the appellant had provided any invoice for the goods which were actually imported, .i.e., those whose thickness was 0.38 mm to 0.45 mm. We, therefore, find that the officer had reasonable doubt regarding the truth and accuracy of the transaction value and has correctly rejected it. 16. Having rejected the transaction value under Rule 12, he found that there were no imports of identical goods and hence the value could not be determined und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be imposed under section 114AA of the Act and it reads as follows: 114AA. Penalty for use of false and incorrect material. If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods. 22. The appellant had clearly made a declaration in the Bill of Entry which is false. The appellant s contention is that it had no intention and it had actually ordered for goods of 0.3 mm thickness but its supplier had supplied goods of much higher thickness (and therefore of higher quality) but sent an invoice for goods of only 0.3 mm. This submission cannot be accepted. If anyone orders some goods and the seller delivers wrong goods, one will naturally return them. Instead, in this case, the appellant accepted the mistake and sought provisional release of the goods which were actually imported. This shows that wrong goods were not sent by the supplier and it is the appellant who made the wrong statement in the Bill of Entry an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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