Custom, Excise & Service Tax Tribunal
Aggarwal Traders vs Commissioner, Customs-New Delhi(Icd ... on 14 February, 2023
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH
CUSTOMS APPEAL NO. 51898 OF 2021
(Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/TKD/IMPORT/798/2021-22
dated 01.09.2021 passed by the Commissioner of Customs (Appeals), New Customs
House, Near IGL Airport, New Delhi-110037)
Aggarwal Traders ...Appellant
Versus
Commissioner of Customs, ...Respondent
TKD New Delhi
APPEARANCE:
Shri Bipin Garg and Ms. Kainaat, Advocates for the Appellant
Shri Rakesh Kumar, Authorized Representative for the Department
CORAM:
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON'BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL)
Date of Hearing: 31.01.2023
Date of Decision: 14.02.2023
FINAL ORDER NO. 50123/2023
JUSTICE DILIP GUPTA:
Aggarwal Traders1 has filed this appeal to assail the order dated
01.09.2021 passed by the Commissioner of Customs (Appeals) 2 by
which the order dated 25.09.2020 passed by the Additional
Commissioner of Customs rejecting the declared assessable value of the
goods and re-determining the same and ordering for confiscation of the
goods with an option to redeem the same on payment of redemption
fine and also imposing penalty under section 112(a)(i) of the Customs
Act, 19623, has been upheld, and the appeal has been dismissed.
1. the appellant
2. the Commissioner (Appeals)
3. the Customs Act
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2. The appellant had filed three Bills of Entry in August 2020 for
clearance of the goods described as „Defective Tinplate Coil and
Defective Tinplate Misprint Sheets‟ 4 under Customs Tariff Heading 5
7210 12 90. The declared unit price of the goods in the three Bills of
Entry is as follows:
S. Bill of Date Description of Declared Declared Unit
No. Entry No. the goods Qty. Price
(MTS) (USD/MTS)
(1) (2) (3) (4) (5) (6)
1. 8375933 04.08.2020 Defective 75.31 435
Tinplate Coil
2. 8390733 06.08.2020 Defective 141.13 330.95
Tinplate (Euro 287)
Misprinted
Sheet
3. 8390321 06.08.2020 Defective 117.91 330.95
Tinplate (Euro 287)
Misprint Sheets
3. The goods were self-assessed by the appellant under section
17(1) of the Customs Act.
4. The Special Investigation Intelligence Branch 6 investigated the
aforesaid three Bills of Entry and noticed that the declared price of the
goods was below the Minimum Import Price and, therefore, violated
Policy Condition No. 1 of the ITC(HS) Import Policy which prescribed
that the specified defective items can be imported free, except those for
which the CIF value of imports was below the value specified for the
said items. The relevant portion of the said Import Policy is reproduced
below:
(1) Second and defectives of items specified below is
permitted for import free except those in respect of
which the CIF value of imports is below the value
specified against each of these items:
4. the goods
5. CTH
6. SIIB
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Sl. ITC(HS) Description Minimum
No. Code CIF Value $
per tone)
1. 7208 H.R. Colls 190.5
2. 7208 HR Sheets 201.75
3. 7209 CRF Coils/Sheets 263
4. 7210 Tinplates 465
Waste/Waste/Tinplate
Misprints
5. 7225/7226 Electrical Sheets 493
(CRNO)
6. 7208/7211 Plates 278
7. 722790 Alloy Steel Bars & 435
Roads (Hot Rolled in
Coils)
5. The goods covered by the aforesaid three Bills of Entry were
examined by SIIB in the presence of the representative of the appellant
and directions were issued to the appellant by a letter dated
09.09.2020.
6. In response to the aforesaid communication, the appellant wrote
a letter dated 09.09.2020 to the Assistant Commissioner of Customs
seeking wavier of the show cause notice and personal hearing. The said
letter is reproduced below:
"Date 9-9-2020
To,
The Assistant Commissioner of Customs Group 4
ICD, TKD, New Delhi
Sub: Request to Waive off Show Cause Notice & PH
pertaining to BR No. 8375933 dt. 04.08.2020 and
8390321 & 8390733 dt. 06.08.2020
Respected Sir,
This is to bring to your kind notice that our goods
were examined by SIIB, import & they were further
given direction as per their letter C. No.
VIII/ICD/10/TKD/SIIB/IMP/INV/Aggarwal/62/2020
dated 09.09.2020.
So, now, we request you to kindly waive the
Show Cause Notice & PH and decide my case with
lenient view because this was our first mistake & we
were not aware of this policy restriction - And, also, we
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are ready to pay the duty amount as per the
assessment value of the goods (which is as usual on
the higher side from the min. value) We are already
suffering a lot from heavy demurrage & detention
charges. So, please decide on priority and release the
goods as soon as possible.
Also, Kindly consider all three BE Mentioned as an
individual document and please proceed them
separately so that goods delivery order for all three can
be taken separately.
Thanking you in anticipation and hoping for a
soonest and favourable decisions.
For Aggarwal Traders
Sd.
Authorised Signatory"
7. The Additional Commissioner, after noting that the importer had
made a request for waiver of show cause notice and personal hearing
observed that since the declared value in the three Bills of Entry was
below the minimum import price, the imported goods became
„restricted‟ goods. The Additional Commissioner also noticed that similar
goods were being assessed at USD 540 as per the Contemporaneous
Import Data. The Additional Commissioner also noted that since the
importer had undervalued the imported goods and, therefore, mis-
declared the value in the entry made in Bills of Entry under section
46(1) of the Customs Act, the goods became liable for confiscation
under section 111(m) of the Customs Act. The Additional Commissioner
thereafter proceeded to re-determine the assessable value. For the
defective tinplate coil, the value was determined at Euro 540 per MTS
instead of 435 per MTS as declared by the appellant. The assessable
value of defective tinplate misprint sheet was determined at Euro 470.5
per MTS instead of Euro 287 per MTS. The operative part of the order
passed by the Additional Commissioner is reproduced below:
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"ORDER
(i) I reject the declared assessable value of
goods, as mentioned in column (4) in Table-D below, in
terms of Rule 12(1) of Customs Valuation
(Determination of Value of Imported Goods) Rules,
2007 and re-determine the same, as specified in
column (5) of said table accordingly in terms of Rule 5
of Customs Valuation (Determination of Value of
Imported Goods) Rules, 2007 read with Section 14 of
Customs Act, 1962 and order to pay duty as mention in
Column (6) of Table-D as per Section 17(4) read with
Section 12 and 14 of Customs Act, 1962 alogwith
Section 2 and 3 of Customs Tariff Act, 1975 and Section
5 of IGST Act, 2017.
Table-D
Sr. Bill of Bill of Declared RE- Total
No. Entry Entry Date Value determined Duty
No. (INR) Assessable Payable
(CIF) Value (INR)
(INR)
(CIF)
(1) (2) (3) (4) (5) (6)
1. 8390733 06.08.2020 3577956 5865604 2007503
2. 8375933 04.08.2020 2521205 3129772 563357
3. 8390321 06.08.2020 2989219 4900444 1677177
Total 13895820 4248039
(ii) I order confiscation of goods having re-
determined assessable value as mentioned in column
(5) of Table-D supra, imported vide Bills of Entry, as
specified in column (2) of said table, in terms of Section
111(m) and 111(o) of the Customs Act, 1962.
However, I give an option to the importer to
redeem these goods on payment of Redemption
Fine of Rs. 15,00,000/- (Rupees Fifteen Lakh Only)
under Section 125(1) of the Customs Act, 1962.
(iii) I also impose penalty of Rs. 15,00,000/-
(Rupees Fifteen Lakh Only) on the M/s. Aggarwal
Traders under Section 112(a)(i) of Customs Act, 1962."
(emphasis supplied)
8. Feeling aggrieved, an appeal was filed by the importer before the
Commissioner (Appeals) who, as noticed above, by order dated
01.09.2021 dismissed the appeal. The relevant portion of the order
passed by the Commissioner (Appeals) is reproduced below:
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"5.0 Discussion and findings:-
5.2 Firstly, I note that the Appellant had themselves
requested for waiver of SCN and P.H. vide their letter
dated 09.09.2020. They had admitted that they were
not aware of the Policy Condition and it was their first
mistake. Thus, their plea of not giving opportunity is
self-contradictory as they had themselves waived it.
The Adjudicating Authority had passed the impugned
order in accordance with their request only.
Accordingly, plea of violation of natural justice is
not sustainable.
5.3 Further, I do not find any force in the contention
of appellant that a common order was passed for the
impugned 3 B/Es. The Adjudicating Authority has given
clear bifurcation of declared values and redetermined
values in respect of each bill of entry and worked out
duty payable for each bill of entry. Thus, I find no
infirmity in this regard.
5.4 Also, I note that there is clear cut violation
of FTP as the declared unit price of the impugned
goods is below the Minimum Import Price (MIP)
of USD 465 per tonne - which is in violation
renders the impugned goods as "Restricted" and
thus the same were correctly confiscated under
Section 111(o). The contention of the Appellant that
impugned goods were not restricted has no force and is
not sustainable.
5.5 Insofar as rejection of declared value and
re-determination of value is concerned, I note
that the same has been done on the basis of
contemporaneous data and details of relied upon
B/E have been mentioned in the impugned Order.
I find the ratio of cited case law of Sanjivani Non
ferrous Trading Pvt. Ltd (supra) is applicable in the
instant case. Thus, rejection of declared value
under Rule 12 of CVR, 2007 and re-determination
of value under rule 5 of CVR, 2007 is noted to be
in order. The Appellant has not been able to counter
the same and has vaguely mentioned that other
importers were importing at lower prices. However, no
evidence in this regard has been produced. Thus,
rejection of declared value and re-determination
thereof is upheld.
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5.6 I also find the amount of Redemption Fine
and Penalty imposed to be commensurate with
the facts of the case. I do not find any reasons to
interfere with the impugned Order and the appeal is
noted to be devoid of merits."
(emphasis supplied)
9. Shri Bipin Garg, learned counsel for the appellant assisted by Ms.
Kainaat submitted that the Commissioner (Appeals) was not justified in
upholding the order passed by the Additional Commissioner and that it
was not open to the Additional Commissioner to re-determine the
assessable value at such a high rate even if the appellant had submitted
the letter dated 09.09.2020. Learned counsel also submitted that in any
case neither were the goods liable to confiscation under section 111(m)
and 111(o) of the Customs Act nor could penalty be imposed under
section 112 (a)(i) of the Customs Act.
10. Shri Rakesh Kumar, learned authorized representative appearing
for the Department, however, supported the impugned order and placed
reliance upon the Division Bench decision of this Tribunal in
Commissioner of Customs vs. Hanuman Prasad & Sons7
11. The submissions advanced by the learned counsel for the
appellant and the learned authorized representative appearing for the
Department have been considered.
12. Section 14 of the Customs Act deals with „Valuation of Goods‟
and is reproduced below:
"Section 14. Valuation of goods. - (1) For the
purposes of the Customs Tariff Act, 1975 (51 of 1975),
or any other law for the time being in force, the value
of the imported goods and export goods shall be the
transaction value of such goods, that is to say, the
price actually paid or payable for the goods when sold
for export to India for delivery at the time and place of
7. Customs Appeal No. 51601 of 2019 decided on 20.10.2020 (Tri.-Del.)
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importation, or as the case may be, for export from
India for delivery at the time and place of exportation,
where the buyer and seller of the goods are not related
and price is the sole consideration for the sale subject
to such other conditions as may be specified in the
rules made in this behalf:
Provided ***** ***** *****"
13. It would be seen that section 14 of the Customs Act provides
that the transaction value of goods shall be the price actually paid or
payable for the goods when sold for export to India where the buyer
and the seller of the goods are not related and the price is the sole
consideration for the sale, subject to such other conditions as may be
specified in the rules made in this behalf. The Customs Valuation
(Determination of Value of Imported Goods) Rules, 2007 8 have been
framed in exercise of the powers conferred by section 14 of the
Customs Act. Rule 12 deals with rejection of the declared value and is
reproduced below :
"Rule 12. Rejection of declared value. - (1) When
the proper officer has reason to doubt the truth or
accuracy of the value declared in relation to any
imported goods, he may ask the importer of such goods
to furnish further information including documents or
other evidence and if, after receiving such further
information, or in the absence of a response of such
importer, the proper officer still has reasonable doubt
about the truth or accuracy of the value so declared, it
shall be deemed that the transaction value of such
imported goods cannot be determined under the
provisions of sub-rule(1) of rule 3.
(2) At the request of an importer, the proper officer,
shall intimate the importer in writing the grounds for
doubting the truth or accuracy of the value declared in
relation to goods imported by such importer and
8. the Valuation Rules
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provide a reasonable opportunity of being heard, before
taking a final decision under sub-rule (1).
Explanation.-(1) For the removal of doubts, it is
hereby declared that:-
(i) This rule by itself does not provide a method for
determination of value, it provides a mechanism and
procedure for rejection of declared value in cases where
there is reasonable doubt that the declared value does
not represent the transaction value; where the declared
value is rejected, the value shall be determined by
proceeding sequentially in accordance with rules 4 to 9.
(ii) The declared value shall be accepted where the
proper officer is satisfied about the truth and accuracy
of the declared value after the said enquiry in
consultation with the importers.
(iii) The proper officer shall have the powers to raise
doubts on the truth or accuracy of the declared value
based on certain reasons which may include -
(a) the significantly higher value at which identical
or similar goods imported at or about the same
time in comparable quantities in a comparable
commercial transaction were assessed;
(b) the sale involves an abnormal discount or
abnormal reduction from the ordinary competitive
price;
(c) the sale involves special discounts limited to
exclusive agents;
(d) the misdeclaration of goods in parameters
such as description, quality, quantity, country of
origin, year of manufacture or production;
(e) the non declaration of parameters such as
brand, grade, specifications that have relevance
to value;
(f) the fraudulent or manipulated documents."
14. Rule 12 provides that when the proper officer has reason to
doubt the truth or accuracy of the value declared in relation to any
imported goods, he may ask the importer of such goods to furnish
further information including documents or other evidence and if, after
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receiving such further information, or in the absence of a response of
such importer, the proper officer still has reasonable doubt about the
truth or accuracy of the value so declared, it shall be deemed that the
transaction value of such imported goods cannot be determined under
the provisions of rule 3(1). Explanation (iii) to rule 12 provides that the
proper officer shall have the powers to raise doubts on the truth or
accuracy of the declared value based on certain reasons, which may
include any of the six reasons contained therein, one of which is that
there is a significantly higher value at which identical or similar goods
imported at or about the same time in comparable quantities in a
comparable commercial transaction were assessed.
15. In the present case, the proper officer doubted the value of the
goods declared by the appellant since it was below the Minimum Import
Price and sent a letter dated 09.09.2020 to the appellant. The
appellant, in response to the aforesaid communication, categorically
stated that the issuance of show cause notice may be waived and
personal hearing may also not be given. The appellant also stated that
it was the first mistake and it was not aware of the policy restriction.
The appellant also categorically stated that it was ready to pay the duty
amount as per the assessment value of the goods, which the appellant
believed was usually on the higher side than the minimum value.
16. Section 124 of the Customs Act does provide for issuance of a
show cause notice and personal hearing but in view of the specific
request made by the appellant, show cause notice was not issued and
personal hearing was also not granted. The assessing officer, after
rejecting the value declared by the appellant in the Bills of Entry, re-
assessed the value of goods. The appellant paid the enhanced value
without raising any objection or protest at the time of clearing of the
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goods. Thereafter, an appeal was filed to assail the order passed by the
Additional Commissioner.
17. It is no doubt true that the value of the imported goods shall be
the transaction value of such goods when the buyer and the seller of
goods are not related and the price is the sole consideration, but this is
subject to such conditions as may be specified in the rules to be made
in this behalf. The Valuation Rules have been framed. A perusal of rule
12(1) indicates that when the proper officer has reason to doubt the
truth or accuracy of the value of the imported goods, he may ask the
importer to furnish further information. Rule 12(2) stipulates that it is
only if an importer makes a request that the proper officer shall, before
taking a final decision, intimate the importer in writing the grounds for
doubting the truth or accuracy of the value declared and provide a
reasonable opportunity of being heard. To remove all doubts,
Explanation 1(iii)(a) provides that the proper officer can have doubts
regarding the truth or accuracy of the declared value if the goods of a
comparable nature were assessed at a significantly higher value at
about the same time.
18. Explanation (1)(i) to rule 12 of the Valuation Rules, however,
provides that the rule only provides a mechanism and procedure for
rejection of declared value and does not provide a method for
determination of value and if the declared value is rejected, the value
has to be determined by proceeding sequentially in accordance with
rules 4 to 9.
19. Regarding the determination of the value of the imported goods
the Assistant Commissioner noted as follows:
"Further, as per sub-rule (1) of Rule 3 of Valuation
Rules, the value of the imported goods shall be the
transaction value adjusted in accordance with the
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provisions of Rule 10. Also Sub rule (4) of Rule 3 of
Valuation rules provides that if the value of import
goods cannot be determined under sub rule(1) i.e.
transaction value, then the value shall be determined
by proceeding sequentially through Rule 4 to Rule 9 of
the said Rules. However, as per NIDB import data,
there are no identical goods available for determination
of value as per Rule 4 of CVR,2007. Further, Rule 5 the
Customs Valuation (Determination of Value of Imported
Goods) Rules, 2007 stipulates that subject to the
provisions of rule 3, the value of imported goods shall
be the transaction value of similar goods sold for export
to India and imported at or about the same time as the
goods being valued; Provided that such transaction
value shall not be the value of the goods provisionally
assessed under section 18 of the Customs Act, 1962.
The actual assessable value of the similar goods is USD
540 per metric tonne. Hence the re-determined value
of the imported goods is USD 540 per metric tonne as
per Rule 5 of CVR, 2007."
20. It needs to be remembered that the importer had specifically, in
writing, agreed to pay the duty amount as per the assessment to be
made which he realised would be higher than the minimum value.
Despite this categorical statement contained in the communication
submitted by the appellant to the Assistant Commissioner, learned
counsel for the appellant submitted that at best only the minimum value
contained in the import policy should have been determined and not
higher than the minimum value.
21. It is correct that the Assistant Commissioner could not have
determined the assessable value in an arbitrary manner even if the
importer had submitted in writing that it would pay the duty amount as
per the assessment, but it is seen from the order passed by the
Assistant Commissioner that contemporaneous datas were examined.
During the course of hearing of the appeal, learned counsel for the
appellant also placed certain Bills of Entry relating to identical goods
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submitted by the appellant. It is seen from one such Bill of Entry No.
7462561 dated 16.04.2020, that the appellant accepted the transaction
value of misprint sheets as Euro 495, which would come to 600 Dollars,
whereas in the present case the value has been fixed at only Euro 470.5
per MTS. It cannot, therefore, be urged that the assessable value was
determined by the Assistant Commissioner in an arbitrary manner on a
higher side.
22. The issues involved in this appeal were dealt at length by a
Division Bench of the Tribunal in Hanuman Prasad and it was held that
it was not necessary to issue any notice or grant a personal hearing
when the importer had waived this right in writing and as the value re-
assessed was accepted by the importer, the differential duty was
correctly recovered.
23. In this connection, it would also be useful to refer to a decision
of this Tribunal in Advanced Scan Support Technologies vs.
Commissioner of Customs, Jodhpur 9 , wherein the Tribunal, after
making reference to the decisions of the Tribunal in Vikas Spinners vs.
Commissioner of Customs, Lucknow 10 and Guardian Plasticote
Ltd. vs. CC (Port), Kolkotta11, held that as the appellant therein had
expressly given consent to the value proposed by the Revenue and
stated that it did not want any show cause notice or personal hearing, it
was not necessary for the Revenue to establish the valuation any
further as the consented value became the declared transaction value
requiring no further investigation or justification. Paragraph 5 of the
decision is reproduced below:
9. 2015 (326) ELT 185 (Tri.-Del)
10. 2001 (128) ELT 143 (Tri.-Del)
11. 2008 (223) ELT 605 (Tri.-Kol)
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"5. We have considered the contentions of both
sides. We find that whatever may be the reasons, the
appellant expressly gave its consent to the value
proposed by Revenue and expressly stated that it did
not want any Show Cause Notice or personal hearing.
Even the duty was paid without protest. By
consenting to enhancement of value and thereby
voluntarily foregoing the need for a Show Cause
Notice, the appellant made it unnecessary for
Revenue to establish the valuation any further as the
consented value in effect becomes the declared
transaction value requiring no further investigation or
justification. To allow the appellant to contest the
consented value now is to put Revenue in an impossible
situation as the goods are no longer available for inspection
and Revenue rightly did not proceed to further collect and
compile all the evidences/basis into a Show Cause Notice as
doing so, in spite of the appellant having consented to the
enhancement of value and requested for no Show Cause
Notice, could/would have invited allegation of harassment
and delay in clearance of goods. When Show Cause Notice is
expressly foregone and the valuation is consented, the
violation of principles of natural justice cannot be alleged. In
the present case, while value can be challenged but such a
challenge would be of no avail as with the goods not being
available and valuation earlier having been consented, the
onus will be on the appellant to establish that the valuation
as per his consent suffered from fatal infirmity and such
onus has not been discharged. Further, valuation of such
goods requires their physical inspection and so re-
assessment of value in the absence of goods will not be
possible. The case of Eicher Tractors v. Union of India
(supra) cited by the appellant is not relevant here as in that
case there was no evidence that the assessee had
consented to enhancement of value."
(emphasis supplied)
24. In Vikas Spinners, the Tribunal dealing with a similar situation,
observed as under :
"7. In our view in the present appeal, the
question of loading of the value of the goods
cannot at all be legally agitated by the appellants.
Admittedly, the price of the imported goods declared by
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them was US $ 0.40 per Kg. but the same was not
accepted and loaded to US $ 0.50 per Kg. This loading
in the value was done in consultation with Shri
Gautam Sinha, the Representative and Special
Attorney of the appellants who even signed an
affirmation accepting the loaded value of the
goods on the back of the Bill of Entry dated 7-5-
1999. After loading of the value, the appellants
produced the special import licence and paid the duty
on the goods accordingly of Rs. 4,22,008/- on 19-5-
1990. Having once accepted the loaded value of
the goods and paid duty accordingly thereon
without any protest or objection they are legally
estopped from taking somersault and to deny the
correctness of the same. There is nothing on record
to suggest that the loaded value was accepted by them
only for the purpose of clearance of the goods and that
they reserved their right to challenge the same
subsequently. They settled their duty liability once for
all and paid the duty amount on the loaded value of the
goods. The ratio of the law laid down by the Apex Court
in Sounds N. Images, (supra) is not at all attracted to
the case of the appellants. The benefit of this ratio
could be taken by them only if they had contested the
loaded value at the time when it was done, but not now
after having voluntarily accepted the correctness of
loaded value of the goods as determined in the
presence of their Representative/Special Attorney and
paid the duty thereon accordingly."
(emphasis supplied)
25. In Guardian Plasticote Ltd., the Tribunal after placing reliance
on the decision of the Tribunal in Vikas Spinners, had also observed as
follows :
"4. The learned Advocate also cites the decision
of the Tribunal in the case of M/s. Vikas Spinners
v. C.C., Lucknow - 2001 (128) E.L.T. 143 (Tri.-
Del.) in support of his arguments. We find that the
said decision clearly holds that enhanced value once
settled and duty having been paid accordingly without
protest, importer is estopped from challenging the
same subsequently. It also holds that enhanced
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value uncontested and voluntarily accepted, and
accordingly payment of duty made discharges the
burden of the department to establish declared
value to be incorrect. In view of the fact that the
Appellants in this case have not established that they
had lodged any protest and on the contrary their letter
dated 21-4-1999 clearly points to acceptance of the
enhanced value by them, the cited decision advances
the cause of the department rather than that of the
Appellants contrary to the claim by the learned
Counsel."
(emphasis supplied)
26. In BNK Intrade (P) Ltd. vs. Commissioner of Customs,
Chennai12, the Tribunal observed as follows :
"2.............. It is also to be noted that the importer had
also agreed for enhancement of the price based on
contemporaneous prices available with the Department.
We, therefore, find no merit in the contention raised in
the appeal challenging the valuation and seeking the
refund of the differential duty paid by the appellants on
enhancement."
27. Learned counsel for the appellant also submitted that before
confiscation of the goods in terms of sections 111(m) and 111(o) of the
Customs Act, a notice should have been issued to the appellant.
28. Sections 111(m) and 111(o) of the Customs Act are, therefore,
reproduced below:
"Section 111. Confiscation of improperly imported
goods, etc. - The following goods brought from a
place outside India shall be liable to confiscation : -
*****
(m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54;
12. 2002 (140) ELT 158 (Tri.-Del) 17 C/51898/2021 *****
(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;"
29. The Additional Commissioner has noted that as the importer had tried to import the restricted goods in violation of the provisions of the ITC(HS) Import Policy and the value had not been correctly declared, the goods were liable to confiscation. There is, therefore, no error in the order.
30. Penalty has also been imposed upon the appellant under section 112(a) of the Customs Act. This section is reproduced below:
"Section 112. Penalty for improper importation of goods, etc. - Any person, -
(a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or"
31. As the goods were held to be liable to confiscation under section 111 of the Customs Act, penalty under section 112(a) of the Customs Act has been correctly imposed.
32. There is, therefore, no error in the order passed by the Commissioner (Appeals). This appeal is, accordingly, dismissed.
(Order Pronounced in Open Court on 14.02.2023) (JUSTICE DILIP GUPTA) PRESIDENT (HEMAMBIKA R. PRIYA) MEMBER (TECHNICAL) Shreya