Custom, Excise & Service Tax Tribunal
M/S. Jayalakshmi Enterprises vs Commissioner Of Customs (Import), ... on 1 October, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/10/2007
(Arising out of Order-in-Appeal C. Cus. No. 727/2006 dated 13.10.2006passed by the Commissioner of Customs (Appeals), Chennai)
M/s. Jayalakshmi Enterprises Appellant
Vs.
Commissioner of Customs (Import), Chennai Respondent
Appearance ShriB. SatishSundar, Advocate for the Appellant ShriKailash Chandra Jena, ADC (AR) for the Respondent CORAM HonbleShriR. Periasami, Technical Member HonbleShriP. K. Choudhary, Judicial Member Date of Hearing / Decision: 01.10.2015 Final Order No. 41366 / 2015 Per R. Periasami This appeal is filed against Order-in-Appeal dated 13.10.2006. This appeal is taken up for hearing as per the directions of the Honble High Court of Madras in W.P. No. 19213/2008 directing the Tribunal to hear the appeal in accordance with law.
2. The short issue relates to mis-declaration of quantity, value and description of brand of importation of sports goods. The Bill of Entry No. 987225 dated 25.3.2006 was initially assessed on second appraisement based on the appellants declaration and the value was enhanced to Rs.6.57 lakhs. Based on the intelligence, the SIIB of Customs examined the goods and found variations in the quantities and description. The appellants accepted the enhancement of value and the mis-declaration and waived both show cause notice and personal hearing. The adjudicating authority in his order dated 18.7.2006 enhanced the value and demanded differential duty of Rs.2,13,214/- and also confiscated the goods under section 111 (l) and 111 (m) of the Customs Act, 1962 with option to redeem on payment of redemption fine of Rs.3,85,000/- under section 125 of the Customs Act and also imposed penalty of Rs.40,000/-. The appellant cleared the goods on payment of differential duty, fine and penalty. On appeal by the appellant, the Commissioner (Appeals) in the impugned order upheld the adjudication order and rejected the appeal. Hence the present appeal.
3. Learned counsel for the appellant reiterated the grounds of appeal and submits that they have imported sports goods of various items as per the invoice at page 27 of the paper book. He submits that initially the value was enhanced and again it was further enhanced based on the NIIB data and internet which is not acceptable. He drew attention to paragraphs 6.1 to 6.4 of the impugned order and submits that the appellate authority has not considered their plea at all. He relied on the following decisions:-
(a) Eicher Tractors Ltd. Vs. CC, Mumbai - 2000 (122) ELT 321 (SC)
(b) Commissioner of Customs, Calcutta Vs. South India Television (P) Ltd. - 2007 (214) ELT 3 (SC)
(c) Commissioner of Customs Vs. Bharathi Rubber Lining & Allied Services Pvt. Ltd. 2013(287) ELT 124
(d) Commissioner of Customs Vs. Nath International - 2013 (289) ELT 169
(e) Commissioner of Customs Vs. Polyglass Acrylic Mfg. Co. Ltd. 2014(301) ELT 545 He submits that the Honble Supreme Court and the Tribunal have consistently held that mere NIIB data and valuation circular cannot be the criteria for enhancement of value under section 14 of the Customs Act, 1962. He also submits that the appellants mere waiving of the show cause notice and personal hearing does not imply that they have admitted the mis-declaration of goods etc. The burden is on the department to prove that transaction value is wrong or mis-declared. In support if his contention, he relied on KhushiramBeharilalVs. Commissioner of Customs - 1997 (94) ELT 129 and Commissioner Vs. Aggarwal Distributors (P) Ltd. - 2000 (122) ELT A121 (SC).
4. On the other hand, learned AR for Revenue reiterated the adjudication order and the impugned order. He submits that the appellant not only mis-declared the value and the quantity but also the description. The SIIB has conducted detail investigation and recorded the statement. The appellants have clearly admitted in their statement on the variation in the quantity and also the description. They also waived the show cause notice and personal hearing vide their letter dated 27.3.2006. All their arguments before the lower appellate authority and this Tribunal are only afterthought which has no basis. He submits that the entire case laws relied on by the appellants is not applicable to the facts of the present case as there is no mis-declaration in the above cited cases. He submits that the adjudicating authority has rightly rejected the transaction value and enhanced the value and also confiscated and imposed fine and penalty and the appellate authority has rightly dismissed the appeal of the appellant.
5. After hearing both sides and on perusal of the records, we find that the appellants vide Invoice No. 18107 dated 10.3.2006 had imported sports goods of various items including sports shoes etc. and declared the value of Singapore Dollars 7133 (Rs.1,99,000/-). Initially the Bill of Entry was assessed on the basis of their declaration and the value was enhanced. Subsequently, based on the intelligence, the goods were examined by the SIIB of Customs in the presence of importer. We find as per Annexure I to the adjudication order, appellant hasmis-declared the quantity and certain goods was not declared by the appellant nor in the invoice. We also find that the appellants were fully aware of the quantity and also description and the proposed value which they have initially clearly admitted in their statement before the investigating authority and waived the show cause notice and personal hearing. The adjudicating authority has dealt the issue both on the value as well as on mis-declaration in detail and clearly rejected the transaction value and sequentially proceeded to re-determine the value sequentially for Rule 4 to Rule 8 of Customs Valuation Rules. As rightly held by the lower appellate authority in his detail findings in paragraphs 6.1 to 6.4, we do not find any merit in the appellants contention on the enhancement of value of the goods. All the citations relied by the appellants on value based on NIIB data are distinguishable and are not applicable to the facts of the present case as in that cases, the appellants were not having contested before adjudicating authority and waivedthe show cause notice. Nothing prevented the appellant to contest and produce all the evidences of purchase invoice, terms of purchase, contract to prove that transaction is at arms-length before clearance. As rightly held by the lower appellate authority, the present case is not only mis-declaration of value but the appellants have also mis-declared the quantity and also description and also certain goods were not even declared. The lower appellate authority has also rightly examined their plea and gave clear finding on the appellants contention for variation in quantities. Accordingly, rejection of transaction value, demand of differential duty and the confiscation are liable to be upheld.
6. As regards imposition of fine and penalty, considering the overall facts and circumstances of the case, we reduce the redemption fine from Rs.3,85,000/- to Rs.1,00,000/-. The penalty imposed being nominal, does not call for any reduction. Hence the penalty imposed is upheld. Accordingly, the impugned order is upheld but for the reduction of redemption fine. Appeal party allowed with consequential benefit.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI)
Judicial Member Tehnical Member
Rex
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