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TMI Blog2025 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. Commissioner in impugned order held that the declared value in respect to the containers is liable to be rejected under Rule 12 of the CVR, 2007 and to be re-determined under Section 14 of the Customs Act, 1962 readwith Rule 9 of the CVR, 2007. The report of the Chartered Engineer merits to be considered as the basis for arriving at assessable value of impugned goods. The Ld. Commissioner relied upon the Chartered Engineer reports and enhanced the value in terms of Rule 9 of the Customs Valuation Rules. The Chartered Engineer completely failed to provide the justification as to what was the difference in the quality imported by the Appellant vis-a-vis the quality of goods which had been examined for arriving at the assessable value. The Chartered Engineer also failed to provide the details with respect to who were the suppliers / manufacturers for the goods which were examined against the imported goods to arrive the conclusion that the disputed goods are undervalued. Also, what were the differences with respect to the specification and characteristics of the goods making it differentiable with respect to the imported goods. It is also not provided what quality parameters wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ham gathered intelligence that container bearing No. TGBU5160748 was imported by Shri Asif Sathi and Shri Sarfaraz in name of J.H. Enterprises and suspected to have concealed e-cigarettes. It was found that the above persons imported around 18 containers in the month of September 2022 and lying at different places. During examination of the 18 containers, it was found that the Appellants including the other importers mis-declared description of the goods. Further, some of the import consignments were found containing mobile phone accessories such as tempered glass, earphone/headphone/back cover etc. having marking different companies, such as Samsung, Boat, Vivo, Oppo, apple etc. The most of the goods were found mis declared with respect of their description, value and quantity etc., 1.2 During the investigation, statements of various persons were recorded. The DRI officers appointed Chartered Engineer to ascertain correct value of the mis-declared items of the imported goods. The Chartered Engineer submitted the report which indicated that the value of the goods was grossly mis-declared. Therefore, the investigating authority alleged that the value declared by the Appellants in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chartered Engineer is highly excessive and requested re-valuation of the imported goods. But, the department failed to consider such request of the Appellant. Hence, the valuation adopted by the Chartered Engineer is required to be discarded at the outset. 2.3 Without prejudice, he also submits that the goods imported by the importer are freely available in the market (online and offline market / retail market). He submitted the print outs obtained from the website of www.amazon.in showing the price of various similar / identical products in online market for illustration purpose. Copies of print outs obtained from the website of www.amazon.in showing the price of various similar / identical products in online market. 2.4 He argued that the retail price available at online market changes from company to company, size, quantity, nature of product, characteristic etc. Further, it is to be noted that the imported goods were imported in bulk quantity and therefore, the import price is well below the retail price of online market. Therefore, the Revenue department ought to have taken the price of contemporaneous import for calculating the assessable value in the present case. 2.5 He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same deserves to be quashed and set aside. 2.8 He also submits that Ld. Adjudicating authority failed to appreciate that the statements of the Appellants, Shri Tahir Menn, Shri Parvej Alam, Shri Baldevsinh Vala, Shri Hanif Kapadia were recorded from time to time by the department, but no question was raised in respect of valuation of the imported goods like exercise book, Hair Trimmer, Back Cover, Tempered Glass etc. and therefore, the Respondent has not put any evidence with respect to discard the value of the goods declared by the Appellants apart from the report of Chartered Engineer. The Respondent ought to have first investigated the case in respect of valuation of the goods whether the Appellant correctly declared value or not. The investigating authority ought to have sought justification for value of the imported goods from the Appellant and Co-Appellant. Since, in the present case the Revenue completely failed to investigate and examine the correct value of the imported goods and therefore, the impugned order enhancing value of the imported goods is completely baseless and devoid of any merits. 2.9 He also argued that the Ld. Adjudicating authority erred in holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner ought to have appreciated that the department has not produced single evidence to show that the Appellant was involved/abetted in the alleged offence. In such circumstances, the case booked against the Appellant is illegal and not sustainable in the provisions of law. 2.12 He also submits that the Ld. Commissioner erred in holding that the Appellant had willingly and deliberately indulged in the conspiracy of importing and clearance of prohibited goods i.e. Toys and other offending goods. The Ld. Commissioner ought to have appreciated that had there be any involvement of the Appellant in the alleged import, the department could have unearthed some evidence to that effect like correspondences, chat, diaries, flowback of money, accounting entries, etc. Failing which, the action of Respondent is totally illegal and against the provisions of law. 2.13 He also submits that the Ld. Commissioner ought to have appreciated that compulsory registration under Paper Import Monitoring System (PIMS) was made effective from 01.10.2022 for import of exercise book. In the present case, admittedly the goods were alleged to be imported in August, 2022 and therefore, Notification No.11/2015-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to note that the said finding is without any direct/indirect evidence to establish that the Appellant had any knowledge of the alleged act. In the present case, there were no evidence/documents placed by the Revenue which shows that the Appellant had intentionally mis-classified the imported goods and therefore, penalty cannot be imposed. 3. On other hand Shri Sanjay Kumar, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned orders. 4. Heard both sides and after considering the submissions of both the parties and perusal of the material on records we find that present case arises out of examination and seizure of the imported goods pertaining to 18 import consignments. We find that M/s Skyblue International Trading Company have imported total 5 import consignment which were examined by the officers of DRI and during examination of the goods mis-declaration were observed in respect of value, quantity and other material particulars. The Ld. Commissioner in impugned order held that the declared value in respect to the containers is liable to be rejected under Rule 12 of the CVR, 2007 and to be re-determined under Section 14 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble with respect to the imported goods. It is also not provided what quality parameters were examined so as to differentiate the two products. 4.2 Firstly, the Chartered Engineer ought to have ascertained international price of the disputed goods. Goods imported by the Appellant are easily available in the international market. In terms of the Customs Valuation Rules for imported goods, the Chartered Engineer ought to have ascertained whether any other importer in India, imported the identical or similar goods from the same supplier and/or from the same country. If it is found that none of the importers, imported identical and/or similar goods in India from the same country, then, the Chartered Engineer ought to have adopted the value of the goods available in domestic market. We find the report relied upon by the revenue is silent on this aspect. Further, the Chartered Engineer failed to provide any information how he arrived on the value of goods based on availability of the products in India. The Chartered Engineer failed to provide any justification as to how he analyzed the availability of products in the domestic market. The Chartered Engineer was expected to provide details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the local market like place of dealer / seller of the local market and its credibility in the local market, Reliability of such local dealer, reasons for non availability (if any) of particular product, demand and supply of such product from different suppliers / manufacturers etc. The Chartered Engineer made a conclusive report and provided the market value of the goods without explaining the statistics as to how the market value has been arrived by him. 4.5 In such circumstance there are no reasonable grounds/justification on record to enhancement of value based on Chartered Engineer s certificate by applying Valuation Rule 9 of CVR, 2007. On the report of Chartered Engineer, the enhancement of the value by the Ld. Commissioner in the present matter legally not correct and we therefore set aside the same. 4.6 We also find that the goods imported by the importer are available in the market, the appellants also produced the printouts obtained from the websites of www.amazon.in showing the price of the similar/identical goods. The appellant also produced the Bills of entry filed by various other importers who imported indicial/similar goods. In such circumstance we are of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beneficiary of the import is one Anwar. We called upon learned counsel for the respondents to place the relevant provision which prohibits such an activity on the part of an Import Export Code Number holder. Learned counsel for the respondents categorically made a statement that he is not able to place any such prohibition in law except Section 7 of the Foreign Trade (Development and Regulation) Act, 1992, which reads as follows :- 7. Importer-exporter Code Number. - No person shall make any import or export except under an Importer-exporter Code Number granted by the Director-General or the officer authorised by the Director General in this behalf in accordance with the procedure specified in this behalf by the Director General . The expression import occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly Intentionally aids, by any act or illegal omission, the doing of that thing.: Explanation 1 : A person who, by willful misrepresentation, or by willfully concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing Penalty under Section 112 (a) of the Act can be imposed only if it proves beyond doubt that the person concerned and by his act of omission or commission rendered the goods liable for confiscation or is held that the said goods with the knowledge or reason to believe that the same are liable for confiscation. In the present case, except the report of Chartered Engineer and statements of various persons, there are no any other evidences which shows that the Appellants abetted the office for which the goods are liable for confiscation. In the present case undisputedly, the Appellant did not have knowledge about contents of the goods in containers and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration, etc., was made by the applicant and rather the case against the applicant is that he did not declare the TV to the Customs authorities for which Section 112 is appropriately attracted. Therefore, the justice and fairness demands that penalty of Rs. 25,000/- will be sufficient under Section 112 of the Customs Act on the applicant in this case for carrying the TV for ulterior design of smuggling of TV for monetary consideration. In the light of the above, there is no reason whatsoever to impose penalties on the three Appellants namely Shri Hanif Kapadia, Shri Parwej Alam and Shri Dirgesh Dhedhia, accordingly penalties imposed on the said appellants are liable to be set aside.. 5. In view of the above discussions and findings, we pass the following order:- 1. The penalties imposed upon SHRI HANIF KAPADIA, SHRI PARWEJ ALAM and SHRI DIRGESH DEDHIA under Section 112, 114A and 14AA of the Customs Act, 1962 are set aside, consequently their appeals bearing Nos. C/10642-10644/2024, C/10648-650/2024, C/10653/2024 and C/10654 are allowed. 2. In respect of the appeals, other than the appeals mentioned at Sl.1 above, the matter is remanded to the Adjudicating Authority for passing a fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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