Customs valuation must rest on corroborated evidence and contemporaneous imports, not mechanical LME pricing or disputed third-party material.

Customs valuation cannot be enhanced on the basis of third-party emails, consular reports, test reports and disputed statements without independent corroboration and effective cross-examination, so the allegations of misdeclaration and undervaluation in the zinc and aluminium scrap consignments were not established. Where the consignments were provisionally assessed and cleared on test bond, demand under Section 28 of the Customs Act was impermissible. Revaluation of aluminium scrap by applying London Metal Exchange prices with discount bands, instead of transaction value and contemporaneous import data, was also not permissible. As the principal demands failed, additional customs duty, confiscation and penalties could not survive.

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Issues: (i) Whether the charge of misdeclaration and undervaluation in respect of zinc ash, zinc skimmings, zinc dross and aluminium scrap was sustainable on the basis of third-party documents, emails, consular reports, test reports and statements. (ii) Whether demands could be made under Section 28 of the Customs Act, 1962 in respect of consignments that were provisionally assessed. (iii) Whether the imported aluminium scrap could be revalued by applying London Metal Exchange prices with discount bands instead of the transaction value and contemporaneous import values. (iv) Whether additional customs duty and consequential confiscation and penalties were sustainable.

Issue (i): Whether the charge of misdeclaration and undervaluation in respect of zinc ash, zinc skimmings, zinc dross and aluminium scrap was sustainable on the basis of third-party documents, emails, consular reports, test reports and statements.

Analysis: The imported zinc consignments were tested at the time of import and were found to be zinc ash, while the later report drawn from the factory was inconclusive and did not establish that the goods were skimmings. The finding of misdeclaration was sought to be built mainly on third-party material, including correspondence, emails and external reports, without direct evidence from the appellants. The statements relied upon were also disputed, and cross-examination was denied or not effectively afforded, which deprived the evidentiary material of reliability. In the absence of independent corroboration, the allegations of misdeclaration and undervaluation could not be sustained.

Conclusion: The charge of misdeclaration and undervaluation was not established.

Issue (ii): Whether demands could be made under Section 28 of the Customs Act, 1962 in respect of consignments that were provisionally assessed.

Analysis: The record showed that the consignments covered by the relevant annexures were provisionally assessed and cleared on test bond. The existence of provisional assessments was supported by the bills of entry and EDI printouts, and the contrary finding that no bond or specific identification of provisional bills was shown was held to be erroneous. Where assessment remained provisional, recourse to Section 28 for demand on that basis was held to be impermissible.

Conclusion: The demands founded on Section 28 against provisionally assessed consignments were not sustainable.

Issue (iii): Whether the imported aluminium scrap could be revalued by applying London Metal Exchange prices with discount bands instead of the transaction value and contemporaneous import values.

Analysis: The declared values were rejected and re-fixed by taking LME prices of virgin metal with discount bands, although contemporaneous import data was available and the appellants had produced comparable import instances. The valuation rules require sequential application and the use of similar-goods or contemporaneous import values before resort to a residual method. The authority also relied on general LME-based pricing despite settled material showing that scrap pricing is negotiated and cannot be mechanically linked to prime metal prices. Prior adjudications on similar imports had also rejected such LME-based enhancement.

Conclusion: Revaluation on the basis of LME prices with discount bands was not permissible.

Issue (iv): Whether additional customs duty and consequential confiscation and penalties were sustainable.

Analysis: The goods were scrap and not shown to be manufactured products attracting additional duty as excisable goods. The challenge to additional duty could be raised in the Section 28 proceedings. Since the valuation and misdeclaration findings failed, the foundation for confiscation and penalties also failed. The ancillary demands, confiscation and penalties could not survive once the principal duty demands were unsustainable.

Conclusion: Additional duty, confiscation and penalties were not sustainable.

Final Conclusion: The impugned order was set aside in entirety and all the appeals were allowed with consequential relief.

Ratio Decidendi: Customs valuation cannot be enhanced on a mechanical LME-based formula when contemporaneous import evidence is available, and statements or third-party documents relied upon for undervaluation must be tested by cross-examination and corroboration before adverse findings can be sustained.

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