2013 (9) TMI 177 - AT - Customs

Appellate authority upholds decision, dismissing Revenue's appeals. Rejection of transaction value and procedural lapses deemed unjustified.

CC. (IMPORT), NHAVA SHEVA Versus BHARATHI RUBBER LINING & ALLIED SERVICES P. LTD.

The appellate authority upheld its decision, dismissing the Revenue's appeals. The rejection of transaction value, reliance on DGOV Circular, and ... Principles of natural justice - There had been denial of natural justice inasmuch as the contentions made by the importer in reply to the show cause notices had not been considered in many cases - there was an inherent contradiction in the show cause notice as well as the findings of the original authority - A sweeping statement had been made saying that the assesses did not reply to the show cause notices nor did they avail opportunities of personal hearing. Valuation under Rule 10A - Notice was issued as rejecting the value declared under Rule 10A of the Customs Valuation Rules, 1988 - Held that:- There was not any infirmity in the observation of the Commissioner (Appeals) that the DGOV Circular cannot override the provisions of Valuation Rules – relying upon CC, Calcutta v. South India Television [2007 (7) TMI 9 - SUPREME COURT OF INDIA] - Casting suspicion on invoice produced by the importer was not sufficient to reject it as evidence of value - The invoice price was not sacrosanct but before rejecting the invoice price, the department had to give cogent reasons for such rejection - The assessing authority had to examine each and every case on merits for deciding its validity and he cannot form a view to reject all transaction values on the basis of some general criteria based on DGOV Circular and on that basis load the value of imports uniformly across board. The proposition in the show cause notice was that the value of the contemporaneous imports indicated a higher price - If that be so, that should have been the starting point for determination of value of the imported goods and not some other basis - Further even when we take the values of the contemporaneous imports, the lowest of such value has to be adopted as provided for in Rule 6 and not the highest - no such thing had been done by the assessing officer – Decided against revenue. Issues Involved:1. Rejection of Transaction Value under Rule 10A of the Customs Valuation Rules (CVR), 1988.2. Methodology for Determination of Value under Rule 8 of the CVR.3. Denial of Natural Justice.4. Reliance on DGOV Circular No. 14/2005 for Valuation.5. Contradictions in Show Cause Notice and Assessment Order.6. Applicability of Contemporaneous Import Prices.7. Sequential Application of Rules 5 to 7A of the CVR.8. Remand for Fresh Adjudication.Detailed Analysis:1. Rejection of Transaction Value under Rule 10A of the Customs Valuation Rules (CVR), 1988:The Revenue rejected the declared value of aluminium scrap under Rule 10A of the CVR, 1988, due to the importer's failure to submit documentary evidence like letters of credit. The show cause notice alleged that the declared value was not acceptable, necessitating valuation through Rules 5 to 8 sequentially. However, the appellate authority noted that the rejection of transaction value was not justified as the assessment officer did not proceed sequentially through Rules 5 to 7A before invoking Rule 8.2. Methodology for Determination of Value under Rule 8 of the CVR:The adjudicating authority determined the value under Rule 8 using the LME price of prime metal minus a discount for impurities, resulting in a higher value than declared by the importer. The appellate authority criticized this approach, stating that even under Rule 8, relevant facts from Rules 4 to 7A should be considered with necessary adjustments. The appellate authority found the method arbitrary and not in line with the principles of valuation.3. Denial of Natural Justice:The appellate authority observed that the original adjudicating authority denied natural justice by not considering the importers' replies to the show cause notices and requests for documents. The assessment orders falsely claimed that no replies or responses were received, leading to a miscarriage of justice. The appellate authority set aside the orders on this ground alone.4. Reliance on DGOV Circular No. 14/2005 for Valuation:The DGOV Circular linked the value of aluminium scrap to the LME price of prime metal, which the adjudicating authority relied upon. The appellate authority held that this circular could not override the Customs Valuation Rules, as per the Hon'ble Apex Court's judgment in Varsha Plastics v. Union of India. The valuation should follow the CVR, and the circular cannot dictate the rejection of transaction value.5. Contradictions in Show Cause Notice and Assessment Order:The show cause notice stated that contemporaneous prices were higher than the declared value, suggesting the use of Rule 6 for valuation. However, the assessment order resorted to Rule 8, claiming the absence of contemporaneous import prices. This contradiction undermined the basis for rejecting the transaction value and the subsequent valuation method.6. Applicability of Contemporaneous Import Prices:The appellate authority noted that if contemporaneous import prices were available, they should be used for valuation under Rule 6, with necessary adjustments. The show cause notice indicated such prices were available, contradicting the assessment order's reliance on Rule 8. The appellate authority emphasized that the lowest of the contemporaneous values should be adopted, not the highest.7. Sequential Application of Rules 5 to 7A of the CVR:The appellate authority highlighted that the assessing officer failed to proceed sequentially through Rules 5 to 7A before invoking Rule 8. This procedural lapse invalidated the rejection of the transaction value and the subsequent valuation method. The appellate authority stressed the importance of following the sequential application of rules for determining value.8. Remand for Fresh Adjudication:The Revenue argued that if natural justice was denied, the case should be remanded for fresh adjudication. However, the appellate authority found that the detailed rebuttal of the assessment order's points and the support from various judicial decisions justified upholding the appellate order without remand.Conclusion:The appellate authority's order was upheld, dismissing the Revenue's appeals. The rejection of transaction value, reliance on DGOV Circular, and procedural lapses in valuation were found unjustified. The denial of natural justice and contradictions in the show cause notice and assessment order further supported the appellate authority's decision.