2025 (9) TMI 1098 - AT - Customs

Valuation remanded for re-determination; confiscation upheld; Section 112(a) penalty sustained; Section 114AA and personal penalty quashed

CESTAT remanded valuation for redetermination, holding the Commissioner's methodology for adding a premium was unsupported by objective/verifiable data ... Valuation of imported goods - Rejection of total declared assessable value in respect of LPG imported per vessel LPG/C TURK GAZ and LPG imported per vessel LPG/C SCOTER in terms of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - re-determination of value - mis-declaration of country of origin - confiscation of the goods seized and imposition of penalties on the appellant company and the Vice President - HELD THAT:- The Commissioner has redetermined the premium by adding USD 23.89 PMT to USD 79 PMT considering that the difference in the distance between Assaluyeh, Iran and Omanian Port as 454 Nautical Miles and for the said distance the amount would be USD 23.89 PMT. The said method of computation of premium amount, in our view, is incorrect and cannot be sustained since not computed on the basis of objective and verifiable data. The provisions of Rule 10(2) are very clear that in absence of ascertainable freight amount, 20% of FOB value is to be added as freight, whereas the learned Commissioner proceeded in calculating the freight and insurance amount by adopting a method which is not supported by Rule 10(2) of CVR 2007 as no objective or verifiable data is applied nor keeping in view the Circular No. 04/2006-Cus dated 12.01.2006. Also, it is found that the data furnished by the appellant in their reply based on Clarksons Shipping Weekly Intelligence Report seems to be based on objective and quantifiable data. The said data can be adopted in ascertaining the freight and insurance element for the purpose of calculation of premium amount. Since the learned Commissioner has not verified the said data, it is necessary that the matter be remanded to the adjudicating authority for verifying the data as submitted by the appellant in their reply before the Commissioner and ascertain the premium amount which mainly comprise of freight and insurance from the port of loading at Assaluyeh, Iran to NMP. Confiscation - penalty - HELD THAT:- It is established from the evidence adduced by the department that the country of origin has been mis-declared and thus the goods are liable for confiscation. On the same reasoning and grounds, the imposition of penalty under Section 112(a) of the Customs Act, 1962 on the appellant company is also justified. However, once penalty under Section 112(a) of the Customs Act is imposed on the appellant company, in the circumstances of the case, further penalty under Section 114AA of the Customs Act, 1962 is unwarranted on the Appellant company. On the issue of imposition of penalty on Mr. Sasi Chemmenkottil, Vice President, there are not enough evidence indicating his direct involvement in the mis-declaration of the Country of Origin, hence imposition of personal penalty on him cannot be sustained and accordingly set aside; the Appeal filed by him is allowed. The impugned order is modified and matter is remanded to the adjudicating authority for the purpose of redetermination of the assessable value in the light of the above observation and thereafter quantify the differential duty, confiscation and penalty amount on the Appellant Company. Appeal disposed off by way of remand. ISSUES PRESENTED AND CONSIDERED 1. Whether the declared transaction value (CIF comprising cost price plus premium USD 38/MT) was liable to be rejected under Rule 12 of the Customs Valuation Rules, 2007 on account of mis-declaration of country of origin and other indicia. 2. Whether the premium component (primarily freight and insurance) was correctly re-determined by the authority under Rule 10(2) of the Customs Valuation Rules, 2007 and, if not ascertainable, whether the proviso percentages or objective verifiable data must be used. 3. Whether confiscation of the imported goods and vessels under Sections 111(d), 111(m) and 115(2) of the Customs Act, 1962 and imposition of penalties under Sections 112(a), 112(b) and 114AA on the importer, vessel masters and a company officer were justified on the facts. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Rejection of Declared Transaction Value under Rule 12 CVR 2007 Legal framework: Rule 12 CVR 2007 permits rejection of declared value where the proper officer has reasonable doubt as to truth/accuracy; explanation sets out non-exhaustive grounds (including mis-declaration of country of origin) and requires opportunity to be heard. Rule 3(1) (transaction value) is subject to Rule 12; on rejection valuation proceeds sequentially under Rules 4-9. Precedent treatment: The Tribunal relied on the principle in precedent holding primacy of Rule 12 and that mis-declaration of material parameters (including country of origin) is a valid ground to doubt transaction value. Interpretation and reasoning: The Tribunal accepted the adjudicating authority's finding-based on evidence from the vessel master and logbooks-that the port of loading was Assaluyeh, Iran, whereas bills declared Jebel Ali (UAE). Mis-declaration of origin is listed in Explanation (iii)(d) to Rule 12 and therefore legitimately gives rise to reasonable doubt about transaction value. The Court explained Rule 12's two-step enquiry requirement and noted that where doubts persist after providing opportunity and seeking further information, transaction value cannot be accepted. Ratio vs. Obiter: Ratio - mis-declaration of country of origin is a legitimate ground under Rule 12 to reject declared transaction value; the authority's application of Rule 12 in such factual matrix is lawful. Observational (obiter) points include reiteration of Rule 12's primacy over Rules 3 and 4-9. Conclusion: Rejection of the declared transaction value was justified on account of mis-declaration of country of origin and attendant reasonable doubts under Rule 12 CVR 2007. Issue 2 - Re-determination of Premium (Freight & Insurance) under Rule 10(2) CVR 2007 Legal framework: Rule 10(2) requires inclusion of transport, loading/unloading and insurance costs in the value for delivery at time and place of importation; provisos prescribe fixed percentages where such costs are not ascertainable (20% of FOB for transport; 1% plus transport and insurance for handling; 1.125% of FOB for insurance where not ascertainable). Rule 10(3) mandates additions be based on objective and quantifiable data. Precedent treatment: The Tribunal referenced authorities stressing the need for objective verifiable data and adherence to Rule 10(2) provisos where costs are not ascertainable, as well as administrative circular guidance. Interpretation and reasoning: The Commissioner declined to adopt the department's proposed flat 20% addition and instead re-computed premium by adopting a contemporaneous premium (USD 79/MT) from imports allegedly sourced from Oman and then prorating an additional amount for the nautical-mile difference to arrive at USD 102.89/MT. The Tribunal found this methodology unsupported by objective, verifiable data and contrary to Rule 10(2)'s prescription. The appellant had furnished Clarksons Shipping Weekly Intelligence data purporting to show ascertainable freight (USD ~47.89/MT for Assaluyeh-NMP), which the Commissioner did not verify. The Tribunal held that in absence of Commissioner's verification the arbitrary pro-rata distance method could not be sustained, and remanded the matter for verification of the appellant's objective data and re-determination of freight/insurance in accordance with Rule 10(2) and applicable circulars. Ratio vs. Obiter: Ratio - where re-determination departs from Rule 10(2)'s framework it must be supported by objective, quantifiable data; absent such verifiable data the computation is unsustainable. Obiter - commentary on use of contemporaneous imports must respect comparability (origin, route, quantities) and be underpinned by verifiable indices. Conclusion: The commissioner's method of computing freight/insurance (premium) was legally untenable; the matter is remanded for verification of objective shipping data submitted by the importer and re-computation consistent with Rule 10(2) provisos and Rule 10(3). Issue 3 - Confiscation and Penalties under Customs Act Legal framework: Section 111(d) addresses confiscation where goods are imported contrary to prohibition; Section 111(m) addresses confiscation where goods do not correspond in value or other material particulars (including country of origin) with particulars in bill of entry. Section 115(2) permits confiscation of vessel knowingly carrying such goods. Section 112(a)/(b) and Section 114AA prescribe penalties for omissions/commissions and for furnishing false or incorrect material. Precedent treatment: Tribunal applied established principles that mis-declaration of material particulars (e.g., origin) can attract confiscation and penalties; however imposition of personal penalty requires direct involvement or culpability and proof of knowledge/abetment. Interpretation and reasoning: On facts the Tribunal found evidence (from vessel masters/logbooks) establishing mis-declaration of port of loading (Assaluyeh, Iran), justifying confiscation under Section 111(m). The Tribunal accepted the Commissioner's conclusion that the importer, having come under investigation, did not file revised bills when facts became known, supporting confiscation and a corporate penalty under Section 112(a). The Tribunal however held that once Section 112(a) penalty is imposed on the company, an additional Section 114AA penalty on the company was unwarranted in the circumstances and set that part aside. Regarding the personal penalty on the Vice-President, the Tribunal found insufficient evidence of his direct involvement or knowledge and set aside the personal penalties imposed on him. Penalties on vessel masters and option to redeem vessels were unaffected (not appealed by them to Tribunal). Ratio vs. Obiter: Ratio - mis-declaration of origin established by credible secondary evidence supports confiscation under Section 111(m) and corporate penalty under Section 112(a); imposition of additional penalty under Section 114AA on the same facts may be duplicative and unwarranted. Personal penalty requires specific evidence of direct involvement/knowledge and cannot be sustained on general managerial position alone. Obiter - observations on interplay between confiscation, penalty multiplicity and the need for specific proof for personal liability. Conclusion: Confiscation of goods under Section 111(m) and imposition of corporate penalty under Section 112(a) were sustained; Section 114AA penalty on the company was set aside as unnecessary in the circumstances; personal penalties on the named company officer were set aside for lack of evidence of direct culpability. Matters of quantification of duty, interest, confiscation and penalty were remitted for fresh determination after re-valuation in conformity with this order. Cross-references Rejection of transaction value (Issue 1) and re-determination of freight (Issue 2) are interlinked: acceptance or rejection under Rule 12 drives application of Rules 3 and 10; consequently remand on freight requires subsequent recalculation of assessable value and re-quantification of confiscation/penalty (Issue 3).