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TMI Blog2025 (3) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of the importer, the same was finalized by enhancing the value and demanding differential duty. The betel nuts imported by the above Bill of Entry was declared as 'betel nut second quality ungarbled' but on examination, it was found that it consisted of various varieties of betel nuts and the value declared was for only one variety of betel nut which was applied to all the varieties of betel nuts. This clearly proves misdeclaration of the description of the products followed by misdeclaration of value also. Hence, rejection of transaction value by the authorities is upheld. With regard to Bill of Entry No.169696 dated 24.11.2005 and Bill of Entry No.175491 dated 16.03.2006, the declared value was enhanced based on the documents recovered from the computer of the appellant. Similarly for Bill of Entry No. 176606 and 176607 dated 12.04.2006, 17738 dated 26.04.2006, 177653 dated 03.05.2006, 178528 and 178567 dated 18.05.2006, the Commissioner has relied upon the entries made in the diary recovered from the appellant's premises to enhance the value and relies on fax message dated 13.06.2006 recovered from the appellant's premises to compare the container number, seal number, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice-cum-demand notice under Section 124 read with Section 28(1) was issued rejecting the declared value and for redetermination of value, the goods were held to be liable for confiscation and accordingly, proposal for confiscation and penalty was invoked. The Commissioner in the impugned order takes note of the fact that the original show-cause notice dated 21.04.2011 was issued demanding duty on 29.09.2011 a corrigendum to the show-cause notice was issued. It was held that since duty was already demanded vide the original show-cause notice, the additional quantification of demand by issuing a corrigendum did not in any way make a difference since the demands were already alleged in the original show-cause notice. 2.1 On merits with regard to Bill of Entry No.196600 dated 26.03.2007, the Commissioner found that the copy of the fax message dated 26.03.2007 recovered from the premises of the appellant established the actual transaction value of the consignment as USD 89,900/-, accordingly the Bill of Entry which was assessed provisionally was finalized demanding the differential duty after redetermination of value as per the Customs Valuation Rules, 1988. The goods have also been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the correct value for the goods imported under this Bill of Entry is 89900 USD. However, there was no indication in the fax message as to whom this amount was sent to and as to how the payment was made. This Bill of Entry was assessed provisionally as per the letter dated 01.06.2007 based on NIDB value of USD 323.00 per MT and released on execution of Bank Guarantee and surety bond. C. With regard to 14 Bills of Entry, it is submitted that the declared value was USD 230.00 per MT and was enhanced to 250 USD per MT. Inspite of the value having been enhanced initially at the time of clearance and none of these Bills of Entry were assessed provisionally, the department had proceeded once again to enhance the value based on various documents as indicated herein below: Sl. No. Bill of Entry & Date Documents for enhancement 1 169696 24.11.2005 Details of account maintained by the Appellant in his personal computer, it has been alleged that an amount of Rs.5,57,000/- was paid to Dilena, Representative of Mulia Karya through Shahid and there is a remark that "finally got the money". 2 175491 16.03.2006 Doc No.5/38 indicates certain amounts paid to Dilena through Shahid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the NIDB value of 323 per MT for provisional release chose to ignore the same and rely upon unsubstantiated documents to enhance the value and demand higher customs duty. Relied on the following decisions: * Commr. Of Cus. (Preventive), Amritsar Vs. Tanmay International. 20018 (363) E.L.T. 181 (Tri.-Chan.) * Commissioner of Customs-I Vs. Aasu Exim Pvt. Ltd. 2018 (11) GSTL 226 (S.C.) * Apurva Corporation Vs.Collector of Customs, Calcutta. 2000 (123) ELT 715 (Tribunal) F. With respect to the 4 Bills of Entry, there is no investigation carried out and merely because they were imported from the same supplier, the Commissioner has upheld under valuation and demanded higher duty based mainly on presumption. It is submitted that each Bill of Entry is a separate cause of action and without specific investigation or substantiating evidence, merely because the supplier is the same and goods are the same, there can be no presumption about the under valuation. Therefore, demand with respect to these 4 Bills of Entry is unsustainable. G. It is submitted that with respect to the 14 Bills of Entry mentioned in Annexure -C1 and C2, demand is barred by limitation for the following rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms, Kandla. (Para 5 and 6) 2016 (333) E.L.T. 463 (Tri. - Ahmd.) * Sah Petroleums Ltd. Vs. Commr. Of Cus. (Import) JNCH, Nhava Sheva (Para 23) 2017 (358) E.L.T. 483 (Tri. - Mumbai) I. It is further submitted that originally in the show-cause notice, there was no claim for interest with respect to the 14 Bills of Entry and only in the corrigendum to the show-cause notice dated 29.09.2011 for the first-time, demand with interest was made for the 14 Bills of Entry. This was done much after the Appellant had submitted their reply to the show-cause notice. 4. The Learned Authorised representative on behalf of the Revenue submitted that the import of betel nuts were clearly in violation of Port Restriction as envisaged vide Notification No.49(RE-2006)2004-2009 dt.20.02.2007. The appellant had illegally imported the beetle nuts at Cochin Port, instead of Mangalore Port. Further Notification No.15(Re-2008)2004-2009 dated 4th June2008, removing the Port Restriction but bringing the Price Restriction i.e. Import Price shall not be less then Rs. 35 per KG (All Variety) and this Notification was valid till 13th August 2008 and later amended vide Notification No.10(IRE-2008)/2009-12 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 0.000 4* 177380 26-Apr-06 230.00 17.959 17.55 0.013 0.591 4035.35 45.05 200926 181792.52 54050.00 27-Apr-06 27-Apr-06 5* 177653 3-May-06 230.00 35.309 34.50 0.007 0.299 7933.85 44.82 399442 355595.16 12-May-06 12-May-06 0.000 6* 178528 18-May-06 230.00 35.918 35.09 0.007 0.297 8070.00 45.28 406332 365409.60 56095.00 19-May-06 19-May-06 7* 178567 18-May-06 230.00 17.959 17.54 0.013 0.594 4035.00 45.28 203166 182704.80 19-May-06 19-May-06 0.000 8* 179694 8-Jun-06 230.00 53.02 51.80 0.004 0.204 11914.00 45.93 611071 547210.02 53995.00 12-Jun-06 14-Jun-06 9* 173571 7-Feb-06 230.00 17.14 0.000 44.17 . 10-Feb-06 10-Feb-06 10# 182003 17-Jul-06 230.00 35.65 0.000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igence, Kolkata, the import price of Beetle Nuts (Whole) comes to Rs.15.5Per Kg and that of Split Beetle Nuts comes to Rs. Rs.13/- per Kg. Taking this rate into consideration, it is found to be almost 33% undervalued. Moreover, the Appellant himself admits that the bank transactions were only for the declared value and the balance amounts based on instructions of Ms. Dilena, (Business Partner Dubai) whom Appellant be-friended during 2005 who had asked to arrange for payment of Rs.5,57,000/-, (Expenditure Entry No. 3/38-Question No. 8-Pg. 69) through Mr. Shahid at Dubai) in lieu of "Exports made by her, the payments were sent to Ms. Dilena through Shahid". Moreover the Appellant himself admits that he had made 14 clearance of betel nuts, including clearance of 89.02MT,quoting Price of USD 230 PMT, declaring betel nut Second Quality Un-Garbled, but actually consist of ASSORTED Quality & Types. Appellant's pleading that such Cross Price Adoption based on NIDDB Data/Actual Shipment Settlement Amount is found to be specious argument shorn of legally drawn inference, as observed by the Hon'ble CESTAT, while disposing Appellant's stay application, discussed above. 4.4 Relying on other in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws cited by the notice are not applicable. The differential duty and interest in respect of nine consignments and differential duty in respect of five consignments were demanded in the original show-cause notice itself. Hence, I find no merit in the noticee's allegations that the basic structure and character of the original show-cause notice has undergone substantial change with the issue of corrigendum and that the date of corrigendum has to be taken for the purpose of calculation of time limit, which would make the demand with regard to 12 bills of entry time barred. In fact, the demand of differential duty along with interest in respect of the 7 bills of entry stated to be time barred by issue of corrigendum was made in the original Show cause notice and no additional demand of duty was made with respect to the said bills of entry in the corrigendum". The show-cause notice dated 21.04.2011, the original para 26(f) read as follows: '(f) on re-determination of the value in respect of bills of entry nos. 169696/ 24.11.05, 175491/16.03.06, 176606 177380/26.04.06, 177653/03.05.06, 178528 & 176607/12.04.06, & 178567/18.05.06, 179694/08.06.06, 193183/25.01.07, 173571/07.02.06, 1820 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is was admitted in his statement dated 12.04.2007. On searching the premises of the appellant, a fax message dated 26.03.2007 was found which was in the letterhead of the supplier wherein the container details, the description of the goods, weight per bag, and number of bags of different types in each container, identification marks on the bag, item-wise/container-wise value and total value were clearly mentioned. This was admitted by the appellant in his statement. This fax message declared the transaction value of the consignment as USD 89,900. The only objection of the appellant in this case is that there is no evidence that the payments were made to the supplier and the allegation that payments were made to Ms. Dilena through Mr. Shahid has not been proved. It is also alleged that though Ms. Dilena was available, no questions were asked about the payment. The packing list filed in the above Bill of Entry contain the following details: Description of goods (5x20' betel nut 2nd quality ungarbled) Sl. No. Container No. No. of Bags Net Weight 1. CARU 2746770/MSC 3977645 228 19340 Kgs 2. MSCU 1633421/MSC 3977656 220 18205 Kgs 3. MSCU 1971096/MSC 3977657 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that 'the invoice price is routed through the bank channels and the differential amount is made by his business partners in Dubai to the supplier'. Based on the above documents recovered from the premises of the appellant which is also substantiated by his statements, the value has been rightly redetermined by the Commissioner and hence, the differential duty is upheld. 6. With regard to 10 Bills of Entry which were cleared between 24.11.2005 to 12.02.2007, the documentary evidences indicating undervaluation were available as per the table below: Sl. No. Bill of Entry & Date Documents for enhancement 1 169696 24.11.2005 Details of account maintained by the Appellant in his personal computer, it has been alleged that an amount of Rs.5,57,000/- was paid to Dilena, Representative of Mulia Karya through Shahid and there is a remark that "finally got the money". 2 175491 16.03.2006 Doc No.5/38 indicates certain amounts paid to Dilena through Shahid and some transaction through bank. 3 176606/176607/12.4.06 177380/26.4.06 177653/03.5.06 178528/178567/18.5.06 Relied on documents diary entry, Doc. No.70 & 71 which just indicates a payment of 156599/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time. 7. With regard to remaining 4 Bills of Entry 173571/7.2.06 182003/17.7.06, 186012/19.9.06 and 194171/12.2.07, the Commissioner clearly held that no documentary evidences were available but since the goods were imported from the same supplier and the declared value was 230 USD/MT as per the other bills of entry, even though no documents were recovered based on the evidences with regard to the earlier 11 Bills of Entry, the transaction value is rejected and the value of the consignments are redetermined. As we have observed above since the Bills of Entry were finally assessed after examination of the goods, the question of reopening of the same without any valid documents cannot be sustained. Hence, with respect to Four (4) Bills of Entry, the declared value is accepted. 8. Summing up, the Bill of Entry No. 196600 dated 26.03.2007, the rejection of transaction value is upheld and the redetermination of value at USD 89,900 under Rule 4 of the Customs Valuation Rules, 1998 is sustained, accordingly, the differential duty of Rs.34,04,034/- along with interest as applicable is upheld. Since, the goods were mis-declared followed by misdeclaration of value, confiscation is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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