V. Padmanabhan ORDER
V. Padmanabhan, Member (T)
1. The present appeal is against the Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1256/17 dated 22.11.2017 passed by the Commissioner of Customs (Appeals), New Custom House, New Delhi.
2. The respondent-assessee imported certain goods and filed Bill of Entry No. 7080250 dated 14.10.2016 under EDI at ICD, Tuglakabad, New Delhi and declared various items such as Baby Caps, Cloth Gloves, Baby Bootie, Baby Tights and Baby tops. When the goods were examined on 2nd check basis, certain discrepancies were noticed in respect of the total quantities on some of the declared goods. Further, certain extra items were also found during examination including adult jacket of 'Versace' brand. The Customs Authorities investigated the charges of mis-declaration as well as undervaluation of the impugned goods and recorded the statement of Sh. Eklovey Chug, Manager of the assessee firm, in which he admitted that certain goods of the nature of adult jacket of 'Versace' brand and children jacket were inadvertently sent by the supplier. He also admitted that the imported goods were not as per the declarations made in the Bill of Entry. Further, he also agreed with the manner of calculating the assessable value and differential duty on the basis of market enquiry conducted by the Customs Officers. The importer waived the issue of show cause notice and personal hearing. The case was adjudicated by the Additional Commissioner in which the declared transaction value was rejected under Rule 12 of the Customs Valuation Rules; the assessable value was re-determined in terms of Rule 7 and enhanced to Rs. 39,64,694/-. The adjudicating authority upheld the confiscation of the goods under Section 111(l) and (m) of the Customs Act, 1962 and allowed redemption of the same on payment of redemption fine and penalties. Differential duty of customs was demanded and penalties were also imposed on the appellant as well as the Partners.
3. When the order of the Original Authority was challenged before the Commissioner (Appeals) he held that there was no mis-declaration of the goods, since the departmental officers have not recorded the length of the garment in the examination report. He also set aside the re-determination of the value of the imported goods on the basis of market enquiry. Finally, he set aside the confiscation of goods and penalties imposed. Aggrieved by the impugned order, Revenue has filed the present appeal in which it has been submitted that the Order-in-Original merits to be upheld since the importer had admitted the mis-declaration as well as re-determination of value on record. They also relied on the decision of the Tribunal in the case of Commissioner vs. Jai Shiv Trading Company vide order dated 20.07.2017.
4. With the above background, we heard Sh. R.K. Manjhi, ld. AR for the Revenue as well as Sh. Arijit Dikshit, ld. Advocate for the assessee.
5. Heard both sides and perused record.
6. The respondent-assessee filed Bill of Entry for import of certain goods and when the consignment was examined it was noticed that the quantities of goods imported did not tally with that declared in the Bill of Entry. It was noticed that a few extra items were also found, the details of the goods as declared and as found are given in the following table:-
7. From the above, it is evident that extra items have been found including adult jacket 'Versace' brand. In particular, it is evident that the branded goods bearing the brand name Versace stand imported in the consignment which has not been declared at all. Consequently, we are of the view that there has been mis-declaration on the part of the importer and hence, confiscation of the imported goods under Section 111(l) is upheld.
8. The second issue in the present appeal is regarding the value of the imported goods. The Customs Authorities re-determined the value of the imported goods in terms of Customs Valuation Rules, 2007. Since the importer had failed to advance any documents/invoice to substantiate the value of the goods, the transaction value stands rejected and the value of the goods have been re-determined as per Rule 7 of the Customs Valuation Rules, 2007. It is noteworthy that the representative of the importer has been specifically shown the basis for re-determination of the value and his statement recorded by the Customs Officers. It is on record that Sh. Eklovey Chug, Manager of the importer has specifically admitted in his statement dated 31.12.2016 that he agreed with the manner of calculating the assessable value and differential duty.
9. It is settled position of law that the facts which are admitted need not be proved. In the case of CCE, Madras vs. Systems & Components Pvt. Ltd. -MANU/SC/0208/2004 : 2004 (165) ELT 136 (SC), the Hon'ble Apex Court in para 5 of the order has observed as follows:
"....... Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use, there is no need for the department to prove the same. It is a basic and settled law what is admitted need not be proved".
10. Further, this Tribunal in the case of Jai Shiv Trading Company vide F.O. dated 20.07.2017 has observed as follows:
"The appellant has also challenged that valuation adopted by the customs authorities. From record, it is seen that such redetermination of value has been carried out in terms of Rule 7 of the Customs Valuation Rules which provides for determination of value on the basis of the price of identical or similar imported goods in India. It is further seen from records, that the proprietor of the appellant, Sh. Jayshiv, was shown the market enquiry report at the time of recording his statement on 08.07.2008. Further, in the statement he has voluntarily accepted the increased valuation of the imported goods. It is settled position of law that once the importer has admitted the re-determination of value on record and has accepted the method of such valuation, he cannot subsequently challenge the same on the same ground. Consequently, we uphold the redetermination of the value carried out by the customs authorities".
The ratio of the above judgment is squarely applicable to the instant case.
11. In view of the above discussion, the impugned order is set aside and Order-in-Original No. 38/2017 dated 09.03.2017 is restored. However, in the facts and circumstances of the present case, we are of the view that the redemption fine merits reduction from Rs. 5 lakhs to Rs. 3 lakhs under Section 125 of the Customs Act. Further, the penalty imposed on Sh. Jaganath, Partner under Section 112(b) of the Act is reduced from Rs. 3 lakhs to Rs. 1.5 lakhs.
12. In the result, the appeal filed by the Revenue is partially allowed, the Order-in-Original is restored but with the above modification.
(Pronounced on 08.05.2018).
© Manupatra Information Solutions Pvt. Ltd.