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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 ..... ct from 20.02.2007 and by heavily under invoicing, a detailed investigation was carried on by the Special Investigation and Intelligence Branch (SIIB) of the Cochin Custom House. The appellant had cleared 14 consignments from 24.11.2005 to 12.02.2007 and the 15th consignment was cleared provisionally pending investigation. The investigations revealed that 11 out of 15 consignments imported by the appellant, the description of the goods and the value was mis-declared, accordingly, show-cause notice-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 origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills of Entry, the Commissioner has confirmed demand of Rs.1,62,53,465/- with interest thereon and imposed equivalent penalty. B. The investigation commenced with Bill of Entry No.196600 dated 26.03.2007, where the declared value per MT was 230 USD. (Total USD 2047460). Based on the investigation carried out and the documents recovered, the statements recorded etc. with respect to this Bill of Entry, fax dated 26.03.2007/30.03.2007 from the supplier CV Mulia Karya, the department alleged that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise, Delhi-I 2018 (363) E.L.T. 254 (Tri.-Del.) * Synergy Steels Ltd. Vs. Commissioner of Central Excise, Alwar. 2020 (372) E.L.T. 129 (Tri.-Del.) * Commissioner V. Synergy Steel Ltd. 2020 (372) E.L.T. A26 (S.C.) E. Moreover Mr. Mohammad Fayaz, Superintendent of Customs in his statement dated 20.12.2011 confirmed that the contemporaneous price of similar goods imported at that time was 300-350 USD. The goods imported vide Bill of Entry No.196960 the department had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department had acknowledged the value declared and the alleged undervaluation. Therefore, the demand with respect to the 14 Bills of Entry are barred by limitation, as the allegation of suppression is not established. Only with respect to Bill of Entry No.196600, which was under provisional assessment, the demand, if sustainable on merits, is within limitation. Hence, penalties are also not justified. Relied upon the following decisions: * Ajanta Manufacturing Ltd. Vs. Commissioner of Customs, 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 Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 0.014 0.618 3910.00 45.7 196638 178687.00 557000 2-Dec-05 02-Dec-05 0.000 2* 176606 12-Apr-06 230.00 17.959 17.55 0.013 0.591 4035.35 45.11 200926 182034.64 46454.00 PHYSICAL NA 3* 176607 12-Apr-06 230.00 35.918 35.09 0.007 0.296 8070.70 45.11 401852 364069.28 13-Apr-06 13-Apr-06 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 20316 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-Feb-07 230.00 44.01 393047 10.12 13 196600 26-Mar-07 230.00 89.02 43.16 929538 9.93 14 193183 25-Jan-07 230.00 44.16 599563 10.16 15 175491 16-Mar-06 230.00 44.32 379766 10.19 *Covered under SCN dtd. 21/04/2011 #Covered under Addendum to SCN dtd 29/09/2011 4.3. The Revenue further submits that the as per Import Data of Betel Nuts for the Year 2006-07 available with DGICS (Director General of Commercial Statistics and Intelligence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised by the Revenue is rejected. 5.1 The primary objection raised by the appellant is that the demand is beyond five years if the date of corrigendum to the show-cause notice is taken into consideration. This has been clearly rebutted by the Commissioner by observing that "I find on examination that no additional demand of duty has been made by way of corrigendum dated 29.09.2017 since in the present case the corrigendum does not seek to increase the amount of duty under demand, the case laws 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Invoice No.03/MK/CI/II/2007 dated 28.02.2007 of M/s. C.V.Mulia Karya, Indonesia was showing a unit price of USD 230 per metric ton (C&F) and total value of USD 2047460 (C&F). Detailed examination of the consignment revealed that the consignment comprised of different varieties namely whole, whole with hair, split, split with hair, boiled etc.; and the bags contained distinctive marks for identification. Samples were drawn from bags having different marks and shown to the appellant and this 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted at a later date, the retraction was withdrawn. The appellant has also provisionally cleared the above betel nuts on execution of bond and bank guarantee vide release order dated 11.06.2007. During the relevant period as rightly pointed out by the Revenue, the DGFT had also issued a Notification regarding the value of the betel nuts at Rs.35/75 per Kg which clearly establishes that the appellant had undervalued the value of the betel nuts. The appellant vide statement dated 02.04.2007 submitted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the products as 'betel nut second quality ungarbled' and was assessed to duty at 250 USD per MT. Hence, the question of reopening these cases based on the fax messages and diary entries where the values are declared for different varieties cannot be applied to those Bills of Entry, since the Revenue has accepted the declaration of the products by the appellant, assessed the same and cleared finally after enhancement of the value based on the contemporaneous prices prevalent at that point 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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