1. These four appeals are against a common impugned order dated 31.12.2013 of Commissioner (Adjudication), New Customs House, New Delhi. M/s. M.C. Overseas (main appellant) imported air conditioners of O-General brand from Singapore distributors of the manufacturer. Certain investigations were conducted by the officers of customs with reference to the valuation of imported goods. On completion of inquiry, a show cause notice dated 14.03.2013 was issued to the main appellant and three others. The notice alleged that the imported goods were under-valued for customs duty purposes; the value was sought to be enhanced; proposals were made for confiscating imported goods as well as for imposition of various penalties on all the appellants. The case was adjudicated resulting in the impugned order.
2. The Original Authority held that the goods imported through 14 bills of entry were under-valued and accordingly, he redetermined the value at Rs. 10,90,22,892/-. He also re-determined the value of seized air-conditioners at Rs. 1,61,64,262/-. The MRP declared was also rejected and re-determined at Rs. 23,42,21,725/-. The goods under seizure were ordered to be confiscated with an option to be redeemed on payment of a fine of Rs. 2.5 crores under Section 125 of the Customs Act, 1962. A differential customs duty of Rs. 1,12,72,494/- was confirmed in terms of Section 28 of the Act. Penalty equivalent to this amount was imposed on the main appellant under Section 114A and penalties of Rs. 30 lakhs each were imposed on other three appellants under Section 112 of the Act.
3. Ld. Counsel appearing for all the appellants submitted on the following lines:-
(a) The demand is time barred as the show cause notice has been issued on 14.03.2013 for imports made during 9.01.2012 to 12.03.2012 and there is no evidence of any deliberate mis-declaration or suppression. All consignments were examined and allowed by the Customs officers.
(b) There is no evidence of any extra remittance to the foreign suppliers. All payments were made through normal banking channel. The invoices were not manipulated or found to be fake. The import details of EGPL were all along available with Revenue and as such, there is no new material unearthed to allege fraud against the appellant.
(c) The main appellant is not a dummy importer. IEC is in the name of Shri Manu Chopra. He lent his IEC code to the other two appellants. There is no offence committed under Customs Act, 1962. The concept of 'beneficial owner' has been accepted after the introduction of Section 2(3A) of the Customs Act, 1962 w.e.f. 4.4.2017.
(d) The demand of SAD is not sustainable as Customs Notification No. 29/2010-Cus dated 27.02.2010 does not provide for any condition of payment of VAT or ST. Non-submission of bill is not relevant to the exemption.
(e) There is no under-valuation of the imported goods. The contemporaneous importers considered for rejection of the declared value are not appropriate for re-valuation. The imports by EGPC cannot be considered as contemporaneous. They have imported from Thailand. The quantity imported by the appellant is much higher. The imports from Thailand enjoyed concessional rate. EGPL is dealing with parent company, which is related. Since the appellant did not provide any warranty or any accessories/installation service, the prices declared are lower.
(f) The goods, which are not in custody of the Department, cannot be ordered to be confiscated. The Original Authority has erred in ordering confiscation of goods, which are already cleared after due assessment.
(g) The present case is one of parallel imports of identical goods. Even if there is a mis-declaration of MRP resulting in evasion of CVD, penal provisions under Customs Act cannot be invoked. There is no provision to demand duty when the goods were later sold with higher price.
(h) Duty cannot be demanded jointly and severally as there is no legal provision to support such demand.
(i) The Department did not provide full particulars of contemporaneous imports, which were relied upon for enhancing the value.
4. Ld. AR contested the appeals on all the points. He submitted mainly on the following points:-
(a) The enhancement of value has been made in terms of Customs Valuation Rules, 2007. The main appellant imported the air-conditioners from distributors. The correctness of import value cannot be supported by the manufacturer's invoice.
(b) The contemporaneous imports were of identical air-conditioners by EGPL and the data was taken from NIDB. Relying on the decision of the Hon'ble Supreme Court in Pioneer Impex : 2015 (319) ELT 355 (SC), it was submitted that when there is no manufacturer's invoice and the goods were imported from traders, and when the Department has evidence of import of identical goods, enhancement of transactional value is justified.
(c) The MRP of the imported goods has been declared less at the time of import and later the goods were sold with much higher price. The importer himself admitted that the goods imported vide bills of entry No. 6028117 dated 17.02.2012 matches in all details with imports by EGPL. As such, the comparison cannot be questioned.
(d) On query, the dealers of O-General brand air-conditioners clarified that their price did not include copper kit, installation charges and free service. It is clear that MRP is fixed by the manufacturer and the dealers cannot have different MRP in respect of the same product.
(e) Investigation by the officers proved that the MRP has been declared less at the time of import and the same goods were sold at much higher MRP to the customers. The enhancement of value upon such investigation based on evidence cannot be questioned.
(f) Two of the appellants (Shri Rohit Sakuja and Shri Ajit Singh Chadda) were involved in similar mis-declaration and fraudulent import of identical goods. When the matter came up in appeal before the Tribunal, the penalties imposed were upheld. The appellants are fully aware of legal consequences and deliberately indulged in such mis-declared imports.
5. We have heard both the sides and perused the appeal records.
6. In the present case, the dispute is with reference to correct valuation of imported air-conditioners. Customs officers conducted certain verification on the information that comparable goods of identical nature have been imported by others with higher transaction value. The statement of various persons were recorded and details were collected regarding contemporaneous imports of identical goods. The Original Authority rejected the declared assessable value and re-determined the same based on the contemporaneous value declared for similar goods imported by other persons. The appellant contested such finding on various grounds.
7. We notice that all the issues raised by the appellants have not been duly addressed for a detailed finding by the Original Authority. To begin with, the appellant pleaded that they were not provided with the copies of the bills of entry filed by EGPL, which was relied upon to arrive at the comparable price of equivalent models of air-conditioners. Copies of bills of entries referred to in the NIDB data were also not provided.
8. The appellants also strongly contested the impugned order on limitation. We note that in the present case, the re-determination of value has been done based on the contemporaneous imports of similar goods. In such situation, the claim of the appellant regarding limitation requires more detailed examination. The data relating to imports by EGPL were available with the Revenue during the material time. The appellant's claim is that all these goods were physically examined and in certain cases, the value re-determined before the goods were allowed clearance. In fact, the appellant claimed that the MRP declared by them was higher than those of EGPL.
9. Regarding rejection of value under Rule 12 of the Valuation Rules, we note that while, prima facie, the said rule can be invoked when the appellants failed to produce manufacturer's invoice and other supporting evidence in order to substantiate their declared value, re-determination of assessable value based on contemporaneous imports is to be done, considering similar commercial level in transactions. It is the submission of the appellant that the quantities imported and the country of export were all different. The commercial levels in the transactions were also different. We are of the opinion that this requires a more detailed examination. The impugned order holds that the air-conditioners compared are of same modals. This alone will not be sufficient to satisfy the requirements of comparable commercial level of transactions.
10. One more point strongly contested by the appellant is denial of exemption under notification No. 29/2010-cus dated 27.02.2010. The exemption was denied only on the ground that no supporting evidence was submitted by the appellant by way of sale bills, payment of VAT, etc. We are in agreement with the appellant that this is not one of the conditions stipulated in the said notification.
11. The appellant also pleaded that there is no violation of Customs Act, 1962 even if it is held that Shri Manu Chopra lent his IEC to other two appellants. The reference was made to the newly introduced provisions under Section 2(3A) of the Customs Act, 1962, which defined "beneficial owner". The appellant claimed that this legal provision has no application during the material time.
12. Regarding comparison of value with reference to imports by EGPL, the appellant contested certain factual findings recorded in the impugned order. Based on a letter received from M/s. RAACO ONE, who is a non-authorized dealer of the air-conditioners, a conclusion was drawn regarding the nature of transaction of air-conditioners in India. It is submitted that EGPL provided free copper tubing's, commission and installation service for the air-conditioners sold by them. We find this fact requires further examination.
13. One more important aspect is regarding confiscation of imported goods covered by 14 bills of entries. We note that the Original Authority
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ordered confiscation of seized as well as "un-seized? goods with an option to redeem on payment of Rs. 2.5 crores in terms of Section 125 of the Customs Act, 1962. It is now a well settled legal principle that the Adjudicating Authority cannot order the confiscation of the goods, which were neither seized/detained nor released on a specific bond executed by the owner. In other words, the goods, which were not seized and cleared with no reference of detention or bond cannot be ordered to be confiscated. We find that the order of confiscation of all the goods covered by 14 bills of entries is not legally sustainable. Confiscation, if any, is to be with reference to seized goods only. Accordingly, the finding with reference to confiscation and redemption fine is to be re-examined for a fresh decision. 14. In view of the above discussion and analysis, we find that the impugned order as it stands cannot be sustained. Accordingly, the same is set aside with a direction to the Original Authority to decide the case afresh after providing opportunity to the appellant to present their side of the case. The appeals are allowed by way of remand.