2025 (9) TMI 140 - AT - Customs

Tribunal upholds valuation: costs to bring offshore 'as-is' wreck inshore and clear port included in assessable value

M/s. Arihant Ship Breakers Versus Commissioner of Customs (Appeals), Bangalore

CESTAT-BANGALORE-AT dismissed the appeal and upheld the impugned order holding that, for a wreck sold on an 'as is where is' basis off shore, charges ... Valuation of goods - inclusion of transportation charges, handling charges and other charges to the agreed value of the wreck ship “MV Ocean Seraya” sold on “as is where is” basis, at Oyster Rock off Karwar Port, India - HELD THAT:- Taking note of the fact that the sale was on C&F value and following the judgment in Ispat Industries Ltd.’s case [2006 (9) TMI 181 - SUPREME COURT], the Tribunal concluded that the barging charges incurred by the importers therein for ferrying the goods from the ship to the jetty are not to be included in the assessable value of the goods. Contrary to the facts of the said case, in the present case, it is an admitted fact that the sale was on ‘as is where is’ basis i.e. near the Oyster Rock and it is the responsibility of the purchaser / importer to bring the said broken ship / scrap to the Karwar Port and ultimately break into smaller pieces in their warehouse and clear the same from the Port on payment of appropriate customs duty. Thus, the ratio laid down by the Hon’ble Supreme Court in Southern Petro Chemical Industries Ltd.’s case (supra) is not applicable to the present case. The wrecked ship “MV Ocean Seraya” was sold by the overseas seller in the condition “as is where is” basis lying off Oyster Rock. Therefore, the charges for bringing the said broken ship into smaller pieces ought to be added to the value. The appellant, neither before the adjudicating authority nor here, has disputed the correctness of the quantum of charges added to the invoice value in arriving at the assessable value of the scrap by the learned Commissioner in the impugned order, which is based on the balance sheet and ledger accounts submitted by the appellant in response to the various communications sent by the Department to them. In such circumstances, there are no infirmity in the impugned order. Appeal dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether transportation, handling and other local charges incurred in bringing salvaged parts from the wreck site to the customs notified area are includible in the assessable value of goods imported on an 'as is where is' basis. 2. Whether filing an Into-Bond (warehousing) Bill of Entry at the place of wreckage and provisional assessment thereon precludes subsequent addition of actual salvage, barging and local freight charges to the assessable value. 3. Whether the facts of the case bring it within the rule that barging charges (incurred to transfer cargo from ship to jetty) are not includible in assessable value, or whether a different principle applies when sale is on 'as is where is' basis and the purchaser is responsible for bringing goods to the customs barrier. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Inclusion of transportation, handling and local charges in assessable value Legal framework: Customs valuation requires determination of the value of imported goods at the time they reach the customs barrier; elements of port/landing/transport charges borne by the importer to make goods available for clearance are relevant in arriving at the deemed price. Precedent treatment: The Tribunal applied the principle from a binding supreme authority that port/landing charges payable by the importer to bring goods to the customs barrier must be taken into account unless it is established that such charges were the seller's obligation and actually paid by the seller. Interpretation and reasoning: The wrecked vessel was sold on an 'as is where is' basis at the wreck site; the purchaser/importer bore the responsibility to convert the wreck into transportable pieces and bring them to the notified customs area. The Department permitted provisional assessment because actual salvage and local transport costs were uncertain; subsequently, on available ledgers and balance-sheet information supplied by the importer, the Department calculated and added local freight, salvaging and handling charges to arrive at a final assessable value. Given that these costs were incurred (or were the importer's obligation) to bring goods to the customs barrier, they constitute elements of the value at importation. Ratio vs. Obiter: Ratio - costs necessary to bring goods to the customs barrier and borne by the importer are includible in assessable value where the sale is on terms that leave such costs as the importer's obligation and they are not shown to have been paid by the seller. Conclusion: Transportation, handling and other local charges required to bring the salvaged parts to the customs barrier are properly includible in the assessable value. Issue 2 - Effect of filing Into-Bond (warehousing) Bill of Entry and provisional assessment on later valuation adjustments Legal framework: The Customs Act permits filing of warehousing/home-consumption entry after delivery into customs area; provisional assessment may be allowed where particulars (e.g., salvage/freight costs) are not then ascertainable. Customs valuation must ultimately reflect value at the customs barrier. Precedent treatment: The Tribunal rejected the submission that filing a warehousing Bill of Entry conclusively fixes value and bars addition of subsequent local charges where provisional assessment was made pending actual costs. Interpretation and reasoning: The Department allowed an Into-Bond Bill of Entry and a provisional assessed value because the importer could not then quantify salvage and local transport costs. The importer explicitly requested provisional assessment and agreed to the provisional assessed value. That procedural posture preserves the Department's ability to finalize assessment upon receipt or analysis of actual cost data; filing a warehousing entry under these circumstances does not preclude later inclusion of legitimately incurred and necessary local charges in the final assessable value. Ratio vs. Obiter: Ratio - a provisional assessment agreed to by the importer, made because actual local costs were unknown, does not bar a later reassessment to include bona fide local charges once determined or reasonably estimated; the act of filing Into-Bond is not, by itself, an absolute lock on valuation when provisional assessment was entered into. Conclusion: Filing the Into-Bond Bill of Entry with provisional assessment does not prevent the Department from adding salvage, barging and local freight charges to the assessable value when such charges are properly attributable to bringing the goods to the customs barrier and were not ascertainable at the time of provisional assessment. Issue 3 - Applicability of precedents excluding barging charges and distinction on facts Legal framework: Prior decisions have held that barging charges incurred to ferry cargo from ship to jetty are not includible in assessable value in certain factual matrices, particularly where CIF/C&F contracts exist and the barging is merely a matter of discharge at the port of import. Precedent treatment (followed/distinguished): The Tribunal distinguished those precedents as fact-specific. Where sale is CIF/C&F and landing/barging are customary port-handling matters not placed on the importer by contract, precedent excludes barging costs. By contrast, where sale is on 'as is where is' at an offshore wreck site and the purchaser is contractually required to perform salvage, cutting and transport to the customs area, those costs are part of the importation cost and must be added to value. Interpretation and reasoning: The facts here differ materially from cases where barging was a normal discharge step at port for CIF/C&F sales. The present sale placed the burden on the purchaser to effect removal of the wreck and deliver salvage to the notified area. Because the purchaser bore and incurred the local charges necessary to make the goods available at the customs barrier, those charges are analogous to landing/port charges and must be reflected in the assessable value. The importer did not demonstrate that such charges were borne or paid by the seller. Ratio vs. Obiter: Ratio - precedents excluding barging costs are not universally applicable; their applicability depends on contract terms and who bears the obligation/cost to bring goods to the customs barrier. Distinguishing factual differences is decisive. Conclusion: The precedent excluding barging/transfer charges is inapplicable on the present facts; the Department correctly added barging, salvage and related local charges to the assessable value because the sale terms and factual circumstances made these importer-borne costs necessary elements of value at importation. Final Conclusion of the Court The Department's final assessment, which added local freight, salvage and handling charges to the provisional invoice value on the basis of documents (balance sheet, ledgers) submitted by the importer and consistent with the legal principle that charges to bring goods to the customs barrier are part of value where borne by the importer, is sustainable. The appeal is dismissed as devoid of merit.