Page 237 - ELT_1st August 2020_Vol 373_Part 3

2020 ] P.G. ELECTROPLAST LTD. v. PRINCIPAL COMMISSIONER OF CUSTOMS, NOIDA 419

assessment became final and therefore reassessment by way of present proceed-
ings was not available to Revenue and they have relied on ruling by Hon’ble Su-
preme Court in the case of M/s. Priya Blue Industries Ltd. v. Commissioner of Cus-
toms (Preventive) reported at 2004 (172) E.L.T. 145 (S.C.). They have further sub-
mitted that all the information required for assessment was submitted during the
relevant period from May, 2010 to January 2011 and therefore the allegation of
suppression leveled on 29 May, 2015 are not sustainable. Further the entire de-
mand in the show cause notice is beyond the normal period of limitation and in
the absence of any suppression extended period is not invokable and since the
entire demand is for extended period the demand is not sustainable. He has fur-
ther submitted that during the investigation no evidence has come to notice that
there was any arrangement of overvalued differential amount to be flow back to
the importer. The allegation in show cause notice was for overvaluation and
show cause notice made a reference to an agreement between M/s. Tessuti (HK)
Co. Ltd. Hong Kong and M/s. Chunghwa, Malaysia for issue of debit note in the
case of M/s. J.R. International whereas no such evidence was found in respect of
present appellant. He has submitted that the entire show cause notice is based on
statements of Shri Vishal Gupta recorded over a period of time from 8 March,
2011 to 5 October, 2012 and in reply to show cause notice all the said statement
were denied by the appellant. He has further relied on ruling by Hon’ble Su-
preme Court in the case of C.C.E. & S.T., Noida v. Sanjivani Non-Ferrous Trading
Pvt. Ltd. reported at 2019 (365) E.L.T. 3 (S.C.) and submitted that as held by
Hon’ble Supreme Court that Adjudicating Authority is bound to accept price
actually paid as transaction value and submitted that without any evidence the
transaction value has been rejected by resorting to Rule 12 of said valuation
Rules, 2007 whereas the said Rules require to proceed sequentially and no such
exercise was done.
6. Heard Shri Gyanendra Kumar Tripathi Learned Deputy Commis-
sioner on behalf of the Revenue he has retreated the findings of the Original Au-
thority.
7. We have carefully gone through the record of the case and submis-
sions made by both the sides. From the perusal of the impugned Order-in-
Original, we note that Original Authority has denied cross-examination of the
persons whose statements were relied upon for issuance of said show cause no-
tice dated 29 May, 2015. Further we note that at Para 7.3.18 the Learned Original
Authority has held that the most clinching part of the investigation is the admis-
sion made by Shri Vishal Gupta, Director of M/s. P.G. Electroplast in his volun-
tary statements recorded under Section 108 of the Customs Act, 1962 that M/s.
P.G. Electroplast, overvalued the price of colour picture tubes to avoid payment
of Anti-dumping duty. From the said part of the impugned order we note that
Revenue did not have any evidence to corroborate with the voluntary state-
ments. We note that it is settled principle of law that the assessment of Bill of En-
try is an adjudication order and if within the period provided under Customs act
appeal before Jurisdictional Commissioner (Appeals) is not filed then the as-
sessment becomes final and such final assessment cannot be reopened. In the
present case the assessment were made during the period from May 2010 to Jan-
uary 2011 and after the appeal period of around three months were over the said
assessment became final and therefore through the said show cause notice dated
29 May, 2015 the said assessments were not open for reassessment. Further we
note that the assessment were finalized during May 2010 to January 2011 and all
the information required for assessment was provided by the appellant and
EXCISE LAW TIMES  1st August 2020  237