Page 64 - GSTL_23rd April 2020_Vol 35_Part 4

390 GST LAW TIMES [ Vol. 35
clared cannot be substituted at his stage without proper basis. In any case,
when the petitioner does not desire to import the goods and permission for
re-export is granted, there would be no question of customs duty on differ-
ential value. At best, even if the department succeeds, ultimately, there may
be a question of imposition of penalty under section 112 of the Customs
Act.
5. On the other hand learned advocates for the respondents submitted
that investigation is going on. At this stage, there is strong prima facie evi-
dence to suggest gross undervaluation of the goods in question. To evade
customs duty, since part of the imported goods would be diverted, DRI
undervaluation would lead to loss of customs duty.
6. We have considered the relevant facts. Since investigation is still going
on, the petitioner would also have full liberty to defend its position in adju-
dication that may be initiated. We would not make any observations as to
prejudice one side or the other. Nevertheless, what prima facie appears is
that now that the goods are allowed to be re-exported, the question of
payment of customs duty, on revised valuation even if it were to be ulti-
mately established, would not survive. Of course there would be question
of penalty and personal penalties in case the charges of misdeclaration
while attempting to import the goods are established. Section 112 of the
Customs Act prescribes different penalties under different situations. The
prescription of penalties is by maximum permissible ceiling. It is not neces-
sary to impose maximum possible penalties in every case.
7. Considering such facts and circumstances of the case, we modify the
condition of Bank Guarantee to 25% of the customs duty that may be levia-
ble on the redetermined value of the goods. The condition for providing
bond for the remaining value of the goods remains unchanged upon which
condition being fulfilled within three weeks, the petitioner may be permit-
ted to re-export the goods.
Petition is disposed of.”
3.8 Thus, the respondent No. 2 could not have asked for any other
amount or bank guarantee except 25% of the customs duty as directed by this
Court that may be leviable on the redetermined value of the goods. However,
vide communication dated 7th September, 2018, the respondent No. 3 insisted
for payment of 25% bank guarantee on the amount of IGST leviable on the re-
determined value of goods. The letter dated 7th September, 2018 reads as
under :-
OFFICE OF THE COMMISSIONER OF CUSTOMS,
CUSTOM HOUSE,
NEAR BALAJI TEMPLE, KANDLA
Phone : 02836-27146879 Fax : 02836-271467
Speed Post/Regd. AD
F No. S/10-45/ADJ/Pro-release/Zip Zap/2017-19 Date : 7-9-2018
To,
M/s. Zip Zap Exim Pvt. Ltd.,
Plot No. 397, Sec.-IV &
Plot No. 406, Sec.-1,
KASEZ, Gandhidham.
GST LAW TIMES  23rd April 2020  184