Custom, Excise & Service Tax Tribunal
Anisha Trends vs Chennai( Port Import) on 6 January, 2025
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
Customs Appeal No.42168 of 2013
(Arising out of Order-in-Appeal C. Cus. No. 1087/2013 dated 8.8.2013 passed by the
Commissioner of Customs (Appeals), Chennai)
M/s. Anisha Trends Appellant
302, Mandy Nav Jivan Building
121/127, Kazi Sayed Street
Mumbai - 400 003.
Vs.
Commissioner of Customs (Imports) Respondent
Custom House No. 60, Rajaji Salai Chennai - 600001.
APPEARANCE:
Ms. M. Punnagai, Advocate for the Appellant Smt. O.M. Reena, Authorized Representative for the Respondent CORAM Hon'ble Shri P. Dinesha, Member (Judicial) Hon'ble Shri M. Ajit Kumar, Member (Technical) FINAL ORDER NO.40023/2025 Date of Hearing : 22.11.2024 Date of Decision: 06.01.2025 Per M. Ajit Kumar, This appeal is filed by M/s. Anisha Trends against Order in Appeal C. Cus. No. 1087/2013 dated 8.8.2013 passed by the Commissioner of Customs (Appeals), Chennai (impugned order).
2. Brief facts of the case are that DRI gathered intelligence to the effect that the appellant had allegedly imported 'MACE GRADE III' from Indonesia vide Bill of Entry No. 254195 dated 3.7.2009 through Chennai Seaport by grossly mis-declaring the quantity, grade and value of the imported Mace with an intention to evade payment of duties of customs. The country of origin was declared as Indonesia, 2 C/42168/2013 the supplier was M/s. PT Sarikumar Tyunggal Mandiri and the unit price was declared as USD 4800 per MT. Study of the declared price of the 'same product' supplied by the same supplier imported and cleared through Mumbai Port, allegedly revealed that M/s. Shree Surgovind Trade Link Ltd. Mumbai had imported and cleared the 'same item' in two consignments vide Bills of Entry No. 877887 / 09.01.2009 and 884491/27.02.2009 and had declared the unit price as USD 6400 per MT (CIF). An excess quantity of 590.830 Kgs were also found. Show Cause Notice dated 9.10.2009 was accordingly issued by the DRI. After due process of law, the Ld. Adjudicating Authority rejected the declared value and redetermined the same at USD 6,400 per MT. He confirmed and appropriated the differential duty paid during investigation. Penalties were also imposed. Aggrieved by the order, the appellant preferred an appeal before Commissioner of Customs (Appeals), who vide the impugned order rejected the appeal except for setting aside the penalty under sec. 114AA for the Bill of Entry No. 254195 dated 3.7.2009 and penalty under sec. 112(a) of the Customs Act, 1962 in respect of Bill of Entry No. 227729 dated 1.6.2009. Hence this appeal.
3. Ms. M. Punnagai, Ld. Advocate appeared for the appellant and Shri M. Selvakumar, Ld. Authorized Representative appeared for the respondent.
3.1 The Ld. Advocate for the appellant submitted that;
(i) The two imports relied upon by the Department were of the period January and February, 2009 whereas the import in the instant case were during the period June and July, 2009. 3
C/42168/2013
(ii) The appellant had requested for copies of the above said bills of entry along with its corresponding invoices but the same was not provided to the appellant.
(iii) The adjudicating authorities failed to bring into record and supply the NIDB data showing the contemporaneous imports of identical goods for rejecting the transaction value given by the appellant.
(iv) The Department had relied upon the analytical report dated 30.07.2009 given by the Spice Board, Cochin. Significantly, in the said report the Spice Board has not confirmed that the imported goods are not Mace Grade-III
(v) It is a possibility that 'Grade-III Indonesian Mace' is covered by the 'Standard grade' specified in schedule II of the Mace trading and marketing rules.
(vi) The report has certified that the sample was infested, contained moisture and extraneous matters that indicates the import goods cannot be of prime quality to have enhanced value.
(vii) There is no evidence that the goods are of prime quality as observed by the Commissioner (Appeals). In fact, that the appellant had declared the goods as "Mace Grade III (broken 20-25% mix)"
whereas the goods that were compared were not stated to be broken.
(viii) The said analytical report was obtained only from sample of goods covered by bill of entry no.254195 dated 03.07.2009 and thus, it cannot be relied to reject the transaction value for the goods imported and cleared vide Bill of entry no.227729 dated 01.06.2009.
(ix) The declaration made on the basis of documents received from foreign supplier cannot be treated as mis-declaration. 4
C/42168/2013 The Ld. Advocate stated that the non-supply of the documents relied by the department and other lacunae pointed out had rendered the SCN defective and the impugned order which has not considered these issues may hence be rejected.
3.2 The Ld. AR has reiterated the points given in the impugned order. He stated that though the declared weight of the MACE consignment was declared to be of 4800 Kgs it was actually found to contain 5390.83 Kgs. The importer had accepted the comparative and contemporary import value of USD 6400/- PMT. Hence the blame worthy conduct of the importer appellant was evident and the impugned order merits to be upheld.
4. We have carefully gone the appeal memorandum and have heard the rival parties. We find that the dispute relates to the alleged import of excess quantity of MACE, beyond the quantity declared in the BE and the value of the goods was also allegedly undervalued.
5. We find substantial force in the points made by the appellant. In Commissioner Of Central Excise, Bangalore, vs. M/S Brindavan Beverages (P) Ltd., (MANU/SC/2645/2007), the Hon'ble Supreme Court had observed as follows:
'10. . . . . The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice.
6. We find that the non-supply of the Bill of Entry relied upon to enhance the price of the imported goods and lacunae in the analytical report dated 30.07.2009 given by the Spice Board, Cochin, regarding 5 C/42168/2013 the grade of the goods is fatal to the department's case. It is settled law that the onus to prove that the declared price did not reflect the true transaction value is always on the Department. Further NIDB data can be a guideline for the customs to arrive at the value of the goods but the NIDB data cannot be applied directly unless the value given therein falls within the parameters of identical goods or similar goods as stated in section 14 of the Customs Act 1962 and the Customs Valuation Rules. As stated by the Hon'ble Supreme Court, it is always for the Customs Authorities to establish by methods known to law and in a satisfactory manner that the value of imported goods is not what the importer says it is and what that value actually is. That onus cannot be shifted to the importer. [See: SOUNDS N. IMAGES Vs COLLECTOR OF CUSTOMS [2000 (117) E.L.T. 538 (S.C.)]. Merely basing the valuation of goods on the acceptance given by the importer cannot be accepted as good evidence or of satisfying the provisions of law.
7. Similarly, any analytical report must state the grade of the goods being tested, the prevalent national / international standards if any for that product and how the product matches or deviates from that standard. Without that, the opinion is of no help. It can only be treated as an opinion in general and not pertaining to the goods in question as in the present case.
8. In the light of the infirmities in the SCN and the resultant erroneous decision taken in re-determining the value of the goods in the OIO and the impugned order, the re-determined value merits to be set aside along with fine and penalties imposed. As regards the case of 6 C/42168/2013 the excess quantity of 590.83 Kgs the price as declared should be adopted and appropriate duty demanded from the importer-appellant as per law.
9. In the circumstances, the impugned order is modified as above and remanded for this limited purpose to the Original Authority. The appellant is eligible for consequential relief if any as per law. The appeal is disposed of accordingly.
(Order pronounced in open court on 06.01.2025) Sd/- Sd/-
(M. AJIT KUMAR) (P. DINESHA) Member (Technical) Member (Judicial) Rex