Custom, Excise & Service Tax Tribunal
Shivam Marketing vs Indore on 17 February, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH,
COURT NO. III
CUSTOMS APPEAL NO. 51596 OF 2019
[Arising out of the Order-in-Original No. 01/COMMR/CUS/ADJ-I/2019-20
dated 12/04/2019 passed by The Commissioner of Customs, CGST and
Central Excise, Indore - 452 001.]
M/s Shivam Marketing, ......Appellant
302, Navlkha - Nemavar Road,
Indore - 452 001, Madhya Pradesh.
Versus
Commissioner of Customs, ....Respondent
CGST and Central Excise, Manik Bagh Palace, Indore - 452 001, Madhya Pradesh.
AND CUSTOMS APPEAL NO. 51597 OF 2019 [Arising out of the Order-in-Original No. 01/COMMR/CUS/ADJ-I/2019-20 dated 12/04/2019 passed by The Commissioner of Customs, CGST and Central Excise, Indore - 452 001.] Shri Gaurav Kushwaha, Partner ......Appellant M/s Shivam Marketing, 5/26, Kali Devi Madav Gate, Farrukhabad - 209 625.
Versus Commissioner of Customs, ....Respondent CGST and Central Excise, Manik Bagh Palace, Indore - 452 001, Madhya Pradesh.
APPEARANCE:
Shri V.K. Puri, Advocate for the appellant. Shri Ranjan Prakash and Shri Nikhil Mohan Goyal, Authorized Representative for the Department CORAM:
HON'BLE MS. BINU TAMTA, MEMBER (JUDICIAL) HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) FINAL ORDER NO. 50274-50275/2026 DATE OF HEARING : 29.10.2025 DATE OF DECISION: 17.02.2026
2 C/51596 OF 2019 & other P.V. SUBBA RAO M/s Shivam Marketing1 and Shri Gaurav Kushwaha2 filed these two appeals to assail the order dated 12.04.20193 passed by the Principal Commissioner, Indore deciding the proposals made in the show cause notice 4 dated 16.12.2025 issued by the Directorate General of Revenue Intelligence 5. When the matter was previously heard, learned counsel for the appellant contended that if an invoice is filed along with the Bill of Entry, valuation has to be done as per that invoice only and even if another invoice is found for the same consignment showing a different value, it cannot be considered to determine the duty because the other invoice was meant for private purposes and was not meant for assessment of duty. He had placed reliance on a decision of a coordinate Bench of this Tribunal in support of this contention. This Bench, doubted the correctness of the decision of the coordinate Bench and referred the matter to a Larger Bench by order dated 10.04.2023. The Larger Bench constituted by the Hon'ble President issued an order dated 25.06.2025 answering the question as follows :-
31. The reference is, accordingly, answered in the following manner:
1. Shivam
2. Gaurav
2. impugned order
4. SCN
5. DRI 3 C/51596 OF 2019 & other "Even if the importer produces one invoice with the Bill of Entry and other invoice for the same consignment is found in the private records or e-mail of the importer showing a different value, the customs duty under section 14 of the Customs Act can be determined on the basis of the transaction value reflected in the invoice retrieved from the e-
mail account of the importer."
2. Thereafter the matter has been listed now before us.
3. We have heard Shri V.K. Puri, learned counsel for the appellant and Shri Ranjan Prakash and Shri Nikhil Mohan Goyal, learned authorized representative for the revenue and perused the records.
4. The appellant is challenging the impugned order the operative part of the which is as follows :-
"1. The value declared in the Bill of Entry No. 549 dated
05.03.2015 is rejected in terms of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962 and the value of the goods is re-determined at Rs. 2,07,23,066- (Rupees Two Crore Seven Lakh Twenty-Three Thousand and Sixty-Six only) in terms of Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 ;
2. The provisional assessment of the goods is finalized in respect of Container No. OOLU2897353, Bill of Entry No. 549 dated 05.03.2015 with duty at Rs. 30,48,778/- (BCD @ 10% - 20,72,307, CVD @ NIL, Primary Ed. Cess @ 2% Rs. 41,446, S&HS Ed. Cess @ 1% - 20723, SAD @ 4% - 9,14,302/-) and ordered to be appropriated from the duty of Rs. 61,14,901/- already paid on 26.05.2015 at the time of provisional assessment. I drop the remaining demand.
3. Interest under section 18 (3) of the Customs Act, 1962 is confirmed and ordered to be recovered from the amount deposited on 26.05.2015;
4. I order for confiscation of goods, as detailed in Annexure "A" to the notice, with total ascertained value of Rs. 2,07,23,066/- (Rupees Two Crore Seven Lakh Twenty - Three Thousand Sixty-
4 C/51596 OF 2019 & other Six only), under section 111 (f) of the Customs Act, 1962. As these goods have already been provisionally released to the Noticee on their request, I impose a redemption fine of Rs. 25,00,000/- (Twenty Five Lakh only) in lieu of confiscation under section 125 of the Customs Act, 1962.
5. The Customs duty amounting to Rs. 31,91,650/- (Rupees Thirty One Lakh Ninety One Thousand Six Hundred and Fifty) /- (BCD @ 10% - 21,69,420, CVD @ NIL, Primary Ed. Cess @ 2% Rs. 43,388/-, S&HS Ed. Cess @ 1% - 21,694/-, SAD @ 4% - 9,57,148/-) pertaining to five (5) Bills of Entry as detailed in Annexure "B" to the notice is confirmed and ordered to be recovered under section 28 of the Customs Act, 1962 from the amount of Rs. 66,12,005/- already paid by them on 19.02.2015. I also order recovery of interest under section 28AA of the Customs Act, 1962 and order for recovery of the same from the amount already deposited by them.
6. I order confiscation of the goods of Container No. OOLU1795505 under section 111 (f) & 111 (m) of the Customs Act, 1962 and give an option to Noticee No. 1 to redeem the same on payment of a redemption fine of Rs. 1,00,00,000/- (Rupees One Crore only) in lieu of confiscation under section 125 of the Customs Act, 1962.
7. Penalty of Rs. 6,24,000/- (Rupees Six Lakh Twenty Four Thousand only) is imposed on M/s Shivam Marketing, Noticee No. 1 under section 112 (a) of the Customs Act, 1962.
8. Penalty of Rs. 6,24,000/- (Rupees Six Lakh Twenty Four Thousand only) is imposed on Shri Gaurav Kushwaha, Noticee No. 2 Partner of M/s Shivam Marketing under section 112 (a) of the Customs Act, 1962 for his acts of omission and commission that has rendered the goods liable to confiscation.
9. Penalty of Rs. 25,00,000/- (Rupees Twenty Five Lakhs only) is imposed on Shri Gaurav Kushwaha, Noticee No. 2 partner of M/s Shivam Marketing under section 114AA of the Customs Act, 1962 for his omission and commission for the preparation and usage of false/fabricated documents.
10. This order is issued without prejudice to any other action that may be taken against the assessee or any other party/person concerned with the case under Customs Act, 1962 as amended and Rules made there under or any other law for the time being in force in the Republic of India".
5. The facts which led to the issue of the show cause notice by DRI which culminated in the impugned order are that DRI received intelligence that Shivam had filed Bill of Entry No. 515 dated 12.02.2015 mis-declaring the value of the goods. After investigation, an SCN dated 20.08.2015 was issued by DRI 5 C/51596 OF 2019 & other which is a matter of separate proceedings. During investigation, it appeared to DRI that Shivam had further mis- declared the nature and value of the goods in Container No. OOLU2897353 which arrived at Inland Container Depot6 Kheda, Pitampur, Dhar District M.P. and that it had filed Bill of Entry No. 549 dated 05.03.2015 in which it had mis-declared the nature and value of the goods. When the office of DRI visited ICD, Kheda on 16.02.2015 for investigation in connection with Bill of Entry No. 515, Gaurav produced commercial Invoice No. GIBHL 0042 dated 28.01.2015 along with the packing list pertaining to the Container No. OOLU2897353 downloading it from his E-mail. This invoice showed the description of the goods as Glass Beads, Glass Chatons and Plastic Resin with CIF value of U.S. $ 65,884.52 and total number of carton as 688. However, by then, no Bill of Entry had been filed by Shivam for this consignment.
6. Later, on 05.03.2015, Shivam filed Bill of Entry No. 549 for this consignment but with a different Invoice No. GIBHL 0045 dated 26.01.2015 for the same goods. The differences between the description of the goods value, etc. between the two invoices were as follows :-
Details Commercial Invoice No. Commercial Invoice No. GIBHL 0045 dt. GIBHL0042 dt. 28.01.2015 26.01.2015 field with B/E downloaded for e mail by Shri No. 549 Gaurav Kushwaha Description of Glass Chatons Glass Beads the goods Plastic Resin Glass Chatons Resin Bangles Plastic Resin
6. ICD 6 C/51596 OF 2019 & other Marks & Nos. Glass Chatons (II 1- Glass Beads (II1 - II330) 330 11361) 361 Cartons cartons Glass Chatons (IKI 331 II361) 31 Cartons Plastic Resin 1GB 1 - 1GB Plastic Resin (1GB 1-1GB 123/1GB 123/1GB 182-1GB 379 182-1GB 385) 327 Cartons 321 Cartons Resin Bangles (1GB 380 -
1GB 385) 6 Cartons CIF Value (USD) Glass Chatons Glass Beads (13210.60) (293178.88) Plastic Resin (23410.05) Glass Chatons (38030.06) Resin Bangles (891.01) Plastic Resin (14643.86) Total 317479.94 65884.52 Weight in KG Glass Chatons (10003.85) Glass Beads (8807.070) Glass Chatons (1229.780) Resin Bangles (278.440) Total Wt. (Net) 19462.700 19484.500
7. DRI investigated the matter further and also looked into the past imports of Shivam and issued the SCN proposing re- determine of the value in respect of 5 past Bills of Entry which are listed on Annexure B to the SCN in addition to the re- determining the value in respect of Bill of Entry No. 549.
8. The issues to be decided by us are as follows :-
(i) Re-determination of the value of the goods in Bill of Entry No. 549 dated 05.03.2015 and finalization of the assessment of this Bill of Entry accordingly.
(ii) Confiscation of the goods imported under this Bill of Entry under section 111 (f) of the Customs Act, 19627 and imposition of a redemption fine under section 125 of the Act in lieu of confiscation.
(iii) Re-assessment of the duty in respect of past 5 Bills of Entry listed in Annexure B to the SCN
7. the Act 7 C/51596 OF 2019 & other
(iv) Confiscation of the goods imported in Container No. OOLU1795505 under section 111 (f) and 111 (m) of the Act and an option to redeem them on payment of fine of Rs. 1,00,00,000/- under section 125 of the Act.
(v) Imposition of penalties under section 112 (a) and 114AA of the Act on Shivam and Gaurav.
9. The value declared of Bill of Entry No. 549 dated 05.03.2015 was rejected by the Commissioner under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 20178 readwith section 14 of the Act and it was re-determined under Rule 9 of the Valuation Rules. Accordingly, he finalized the assessment of the goods which was initially done provisionally. The first question to be answered is whether the Commissioner had a reasonable doubt about the truth and accuracy of the value of the declared goods. As can be seen from the above table, Gaurav had initially downloaded and produced an invoice dated 28.01.2015 for the same goods declaring the total value as U.S. $ 65,884.52. Later, by the time he filed the Bill of Entry he produced another invoice for the same goods dated 26.01.2015 declaring the value almost 5 times more at U.S. $ 3,17,479.94. The nature of the goods declared in the two invoices were also different. We, therefore, find that the Commissioner had reasonable doubt about the truth and
8. Valuation Rules 8 C/51596 OF 2019 & other accuracy of the declared value. Accordingly, we find that he was right in rejecting the declared value under Valuation Rules, 12. Having rejected the declared value, the value of the goods has to be re-determined which the Commissioner did under Valuation Rule 9. We note that the container contained a variety of goods and, therefore, it is difficult to find an identical or similar set of goods in another container. Under these circumstances, we find no reason to interfere with the re- determination of the value by the Commissioner under Valuation Rules 9.
10. We also find when the goods were initially released provisionally the appellant had deposited a duty Rs. 61,14,901/- on 26.05.2015. In the Final Order the duty assessed was much less - only Rs. 30,48,778/- which the Commissioner ordered to be appropriated against the amount of duty already paid at the time of provisional assessment. He dropped the rest of the demand. We, therefore, find the Commissioner's order is fair and balanced and calls for no interference in so far as it pertains to the assessment of the Bill of Entry No. 549 dated 05.03.2015 is concerned.
11. Next question is of confiscation of the goods under section 111 (f) of the Act and imposition of redemption fine of Rs. 25,00,000/- in lieu of confiscation. Section 111 (f) reads as follows :-
SECTION 111. Confiscation of improperly imported goods, etc. 9 C/51596 OF 2019 & other
(f) any dutiable or prohibited goods required to be mentioned under the regulations in an arrival manifest, import manifest or import report which are not so mentioned;
12. This section provides for confiscation of any dutiable or prohibited goods required to be mentioned in the import manifest, but which were not so mentioned. Evidently, it is the responsibility of the shipping line to file the IGM mentioning details of all goods. It must also be noted that the IGM indicates Bill of Lading-wise details. The master of the vessel receives goods in containers from the exporters on "said to contain" basis. If a container is said to contain A and is sealed, the master of the vessel is not expected to ensure that, it indeed, contains A. If it is found that the container in fact contained some other goods or in larger quantity, the master of the vessel is not responsible at all. Section 111 (f) will apply to those cases where some of the goods which the master of the vessel unloaded at a port were not mentioned in the IGM. For instance, if he unloads 100 containers at the port his IGM should contain details of all the 100 containers. If he unloads 101 containers, the container which was not mentioned in the IGM will be liable to confiscation under section 111 (f) of the Act.
13. In this case, the dispute is regarding what was mentioned in the Bill of Lading and what was actually found in the container and also regarding the two different invoices which were produced by Gaurav for the same consignment 10 C/51596 OF 2019 & other before DRI during investigation for a lower value and another invoice for the same consignment for 5 times the value which was produced along with the Bill of Entry. This case is clearly not covered by section 111 (f) of the Act. Therefore, the confiscation of the goods under section 111 (f) deserves to be set aside. Consequently, the redemption fine imposed of Rs. 25,00,000/- imposed under section 125 in lieu of confiscation deserves to be set aside and is set aside.
14. In so far as the past five Bills of Entry are concerned, the re-assessment of the goods is based on the alleged mis- declaration of Glass Chatons as Glass Beads by Shivam in those Bills of Entry. These goods had already been cleared and the allegation of mis-declaration is only based on various statements. We find that these statements do not provide sufficient evidence to support the alleged mis-declaration of the goods and the consequential demand of differential duty. Accordingly, the demand of duty in respect of past five Bills of Entry deserves to be set aside and is set aside.
15. As far as the confiscation of the goods under section 111
(f) and (m) is concerned, this container was initially meant to be brought to ICD, Kheda but because of DRI investigation, it was diverted to ICD, Muradabad. On examination of the goods, it was found that the quantity value and description of the goods did not match the declaration. Accordingly, these were confiscated under section 111 (m) and 111 (f) and redemption 11 C/51596 OF 2019 & other fine of Rs. 1,00,00,000/- is imposed in lieu of the confiscation. Section 111 (m) reads as follows :-
SECTION 111. Confiscation of improperly imported goods, etc.
(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;
16. Evidently, unless the Bill of Entry has been filed and the goods which are actually being imported do match the description in the Bill of Entry section 111 (m) will not apply. In the absence of any Bill of Entry being even referred to in the impugned order, confiscation cannot be sustained under section 111 (m). As far as section 111 (f) is concerned, as already mentioned this would only apply to wrong declaration in the IGM by the master of the vessel and will not apply to any declaration by importer.
17. In view of the above, the confiscation of these goods and the consequential redemption fine cannot be sustained and need to be set aside.
18. Since, we have set aside the confiscation of the goods, we do not find any basis to uphold the penalties imposed on Shivam and Gaurav under section 112. Section 114AA reads as follows :-
SECTION 114AA. Penalty for use of false and incorrect material. - If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material 12 C/51596 OF 2019 & other particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods.
19. The penalty of Rs. 25,00,000/- has been imposed on Gaurav under section 114AA of the Act. The finding of the Commissioner on this issue is as follows :-
"I further find that the noticee no. 2 only fabricated the invoice and packing list presented to customs with the Bill of Entry and had prior knowledge that the declaration which he was making was false and incorrect in as much as the invoice and packing list being filed has been prepared by him on his laptop and he intentionally made such false and incorrect declaration. Therefore, I hold him liable to penal action under section 114AA of the Customs Act, 1962".
20. We find that insofar as Bill of Entry No. 549 dated 05.03.2015 is concerned, Gaurav produced two invoices - one for a lower value, which was downloaded by him and presented to DRI during investigation and another invoice for a higher value filed at the time of filing of Bill of Entry. The intentional fabrication for use of incorrect materials in the transaction of the business cannot be doubted. However, considering that we have already set aside the demand of duty in respect of past Bills of Entry and also the confiscation of the goods, we find that it would serve interest of justice if the penalty on Gaurav under section 114AA is reduced to Rs. 2,00,000/-.
21. In view of the above, the re-assessment of the Bill of Entry No. 549 dated 05.03.2015 is upheld and penalty on 13 C/51596 OF 2019 & other Gaurav under section 114AA is reduced to Rs. 2,00,000/-. Rest of the impugned order is set aside.
22. Both appeals are disposed, as above.
(Order pronounced in open court on 17/02/2026.) (BINU TAMTA) MEMBER (JUDICIAL) (P.V. SUBBA RAO) MEMBER (TECHNICAL) PK