Case law

Custom, Excise & Service Tax Tribunal · 16 Jul 2009

M/S. Sellers Men vs Commissioner Of Customs(Imp.), Nhava Sheva Respondents Appearance Shri K.k.singh, Advocate For Appellants Shri K.lal, Authorized Representative

Legal principle

The burden of proving under-valuation rests on the Revenue, and a declared transaction value cannot be rejected by comparing the price of goods bought at auction on stock-lot basis with Indian retail market prices, since suspicion, however grave, cannot take the place of cogent evidence.

Court decision

The Tribunal held that the Commissioner's finding of admission of under-valuation was not justified, that the stock-lot contention was never considered, and that the auction price could not be compared with Indian market prices; it set aside the impugned order and allowed the appeal by way of remand to the Commissioner for de novo decision on a priority basis (hearing within one month), with the AXE-brand IPR issue also to be decided afresh after hearing the appellants.

Facts

M/s. Sellers Men presented Bill of Entry No.894061 dated 01/07/2008 for a consignment of crockery and toiletries with a declared CIF value of Rs.2,85,054/-, assessed on second check with duty of Rs.87,538/- paid. SIIB, JNCH intercepted the consignment, subjected it to 100% examination, and alleged that only 20% of the goods conformed to the invoice/Bill of Entry declarations, with branded goods (Luminarc, Crystal D'Arques, Bohemian Crystal, L'Oreal, Fa, Axe, Mont St. Michel) undeclared. The Department, finding no comparable NIDB data, conducted a market survey (Musafirkhana, Crawford Market, Alfa Andheri) and fixed the value at Rs.22,85,450/- CIF. The Commissioner, by Order-in-Original No.318/2008 dated 23.12.2008, enhanced the value, confiscated the goods under Section 111(m), imposed a redemption fine of Rs.10,00,000/- under Section 125 and a penalty of Rs.5,00,000/- under Section 112(a) of the Customs Act, 1962.

Key provisions