2025 (10) TMI 924 - AT - Customs

FOB declared in shipping bills is transaction value under s.14; third party re-determination invalid; penalties under ss.114/114AA/125 set aside

CESTAT (New Delhi - AT) held that FOB value declared in shipping bills is the transaction value under s.14 Customs Act and cannot be re-determined by a ... Overvaluation of export goods in order to avail higher duty drawback - Rejection of declared value - redetermination of the value - modification of FOB value by a stranger to the contract - reduction of drawback amount claimed in the subject shipping bills based on the value worked out in terms of rule 5 - confiscation og goods exported under the subject shipping bills - levy of penalties u/s 114 and 114AA of the Customs Act. Whether the FOB value can be modified by a stranger to the contract? - HELD THAT:- The FOB value, internationally known as INCOTERM, is an accepted commercial term which determines the rights and liabilities of the buyer and seller in a transaction. In pursuance of the terms of the contract, if it is agreed upon between the parties to the contract that the goods shall be exported on the basis of the FOB value, then the liability of the exporter is limited to the point where the goods are put on board and thereafter it is on account of the importer who undertakes all costs and risks till the goods are transported to the destination port. The amount in the main contract was for the entire sugar plant/boiler. However, payments were made to the appellant as per the invoices raised by the appellant for the export of individual components. Thus, the price actually paid was the value as indicated in the corresponding shipping bills and the invoices generated by the appellant for such individual components, the total of which was equal to the price agreed as per the agreement between the foreign buyer and the appellant. The values declared in the shipping bills have been rejected solely on the ground that there was a difference in the values of individual components as declared by the appellant in the shipping bills and the corresponding ARE-1 prepared by the supporting manufactures. There is no other evidence that was relied upon furnished to corroborate this allegation. The transaction value of the goods under section 14 of the Customs Act is the FOB value declared in the shipping bills. This is what was precisely held by the Tribunal in Jayantah Trading [2025 (6) TMI 1285 - CESTAT NEW DELHI]. The said appellant exported garments under various shipping bills. On an allegation that Jayantah over-valued the goods in order to avail inadmissible duty drawback, a show cause notice was issued for re-determining the FOB value of the goods. The adjudicating authority re-determined the value of the goods and also imposed penalties. The Tribunal held that the customs officer cannot modify the FOB value. It also needs to be noted that the full export price as declared in the shipping bills and the corresponding invoices has been received by the appellant - The Commissioner (Appeals) was, therefore, not justified in placing reliance upon the values declared in the ARE-1 forms. The appellant has described in detail, why the values reflected in the ARE-1 forms were lesser than the FOB values not only in the letter dated 15.05.2012 submitted by the appellant during the investigation but also in the reply filed by the appellant to the show cause notice. Thus, the FOB value declared by the appellant could not have been rejected. It would, therefore, not be necessary to examine whether the transaction value could have been re-determined under rule 5 of the 2007 Customs Valuation Rules - The imposition of fine under section 125 of the Customs Act and imposition of penalties under section 114 and 114AA of the Customs Act cannot be sustained. The order dated 20.09.2019 passed by the Commissioner (Appeals) is set aside and the appeal is allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the FOB (Free on Board) transaction value declared in shipping bills can be rejected or re-determined by Customs officers (or other strangers to the contract) under the Customs Valuation Rules when the FOB price is the negotiated lump-sum/export contract price apportioned across partial shipments. 2. Whether duty drawback entitlement under the Drawback Rules/Notification (payable as a percentage of FOB) can be restricted to values other than the FOB declared in shipping bills, specifically to values re-determined under the Customs Valuation (Determination of Value of Exported Goods) Rules, 2007. 3. Whether discrepant values in ARE-1 forms prepared by supporting manufacturers (lower than FOB invoiced values) justify rejection of declared FOB and re-determination under Rule 5/Rule 8 of the 2007 Customs Valuation Rules. 4. Whether confiscation (Section 113) and penalties (Sections 114, 114AA) and, in lieu of confiscation, a redemption fine (Section 125) can be sustained where Customs contends alleged over-valuation intended to secure excess duty drawback, in circumstances where export price was remitted and the FOB transaction value was supported by contracts/invoices/LCs. 5. Admissibility and evidentiary weight of statements recorded under Section 108 (and reliance thereon) without compliance with Section 138B of the Customs Act. ISSUE-WISE DETAILED ANALYSIS Issue 1: Power to modify FOB transaction value declared in shipping bills Legal framework: FOB is an internationally recognised INCOTERM denoting transaction value under contractual terms; Section 14 (transaction value) and the Customs Valuation Rules govern assessable value determination. Valuation Rules permit rejection of transaction value in specified circumstances and re-determination under alternate methods (e.g., Rule 5), but do not confer power to alter the contractual transaction price between buyer and seller. Precedent Treatment: Tribunal authorities were followed holding that a stranger to the contract cannot change the transaction value and that rejection only leads to determination of an assessable value for duty purposes while the transaction price remains unchanged. Interpretation and reasoning: The Court reasoned that FOB is the price agreed between buyer and seller and reflects the contractual allocation of risk/costs; the principle of privity of contract bars third parties (including Customs officers) from modifying that contractual price. While valuation officers may decline to accept the transaction value for assessable-value purposes, that exercise does not and cannot change the underlying transaction value agreed and remitted under the export contract. Ratio vs. Obiter: Ratio - FOB/transaction value declared in shipping bills (supported by contract, invoices and LC remittance) cannot be modified by Customs; rejection for assessable-value purposes is distinct from altering the transaction price. Conclusions: The FOB values declared in the shipping bills could not legally be rejected or altered by the Customs authorities as the transaction value; Customs may determine an assessable value for duty calculations but cannot supplant the contractually agreed FOB as the transaction price. Issue 2: Entitlement to duty drawback on declared FOB versus re-determined value Legal framework: Duty drawback scheme under Section 75 and Drawback Rules/Notification provide drawback rates expressed as percentages of FOB value (Note 4 to the Drawback Notification). Drawback entitlement is linked to export and realisation of export proceeds; the Drawback Rules/Notification do not incorporate or cross-reference the 2007 Customs Valuation Rules for quantum of drawback. Precedent Treatment: Tribunal authority upheld that drawback and other export incentives payable as a percentage of FOB must be calculated on the contractual FOB and cannot be unilaterally modified by officers. Interpretation and reasoning: Since drawback rates are defined with reference to FOB and because the objective of drawback is to incentivise and reflect actual export realisation, restricting drawback to values re-determined under valuation rules (for assessable-duty purposes) would undermine the statutory scheme and the nexus between remittance and drawback. The Drawback Notification's express reliance on FOB excludes importing valuation rules to alter drawback basis. Ratio vs. Obiter: Ratio - Drawback payable as percentage of FOB must be computed on the FOB declared in shipping bills where export proceeds are realised; a re-determined assessable value under valuation rules cannot displace the FOB for drawback calculation. Conclusions: The appellant was entitled to duty drawback computed on the FOB values declared in the shipping bills; Customs could not validly restrict drawback to ARE-1 or re-determined values under the Valuation Rules. Issue 3: Reliance on ARE-1 discrepancies and application of Rule 8/Rule 5 of 2007 Valuation Rules Legal framework: Rule 8 permits rejection of declared value in specified circumstances; Rule 5 provides methods for re-determination of value. ARE-1 reflects supporting manufacturers' declared values for local supplies; valuation officers may examine consistency between ARE-1 and shipping bill values. Precedent Treatment: Tribunal decisions emphasise that discrepancies alone do not suffice to change transaction value where legitimate cost additions and apportionment for partial shipments exist and where contractual/invoice/LC evidence supports the declared FOB. Interpretation and reasoning: The Court examined contractual lump-sum pricing with pro-rata invoicing for partial shipments and accepted the exporter's explained cost components (marketing, agent commission, inland transport, pre-shipment expenses, inspection, warranty, administrative/design/engineering charges, overheads, profit etc.) that legitimately cause FOB to exceed ARE-1 values. There was no additional corroborative evidence showing manipulation beyond these explanations. Thus, reliance solely on lower ARE-1 values for rejecting declared FOB was inappropriate. Because the FOB transaction value was contractually supported and export proceeds realised, it could not be treated as inflated merely due to ARE-1 differences. Ratio vs. Obiter: Ratio - Mere disparity between ARE-1 values and invoiced FOB, without independent corroborative evidence of artificial inflation or mis-declaration, does not justify rejection of the transaction value under Rule 8 or re-determination under Rule 5 for purposes of denying drawback or imposing confiscation/penalty. Conclusions: The ARE-1 discrepancies did not justify rejection of the declared FOB or re-determination of transaction value; the authorities were not justified in treating ARE-1 as definitive PMV to displace contractually declared FOB. Issue 4: Confiscation, redemption fine and penalties under Sections 113, 114, 114AA, 125 Legal framework: Sections 113(d)/(i) permit confiscation for certain contraventions including false declarations; Section 114/114AA provide for penalties for contraventions and false statements; Section 125 allows fine in lieu of confiscation where goods not available. Precedent Treatment: Penalties/confiscation require proof of culpable mis-declaration or intent to evade law/obtain undue benefit; mere discrepancy without proof of deliberate misrepresentation is insufficient. Interpretation and reasoning: The Court found absence of material to show deliberate overvaluation: contractual lump-sum price, pro-rata invoicing, irrevocable LCs, and bank realisation certificates supported the declared FOB and remittance. The adjudicating authority's reliance on ARE-1 and on statements under Section 108 was undermined by non-compliance with evidentiary safeguards (Section 138B). In these circumstances, confiscation and penalties premised on intentional overvaluation could not be sustained; fine in lieu of confiscation likewise lacked basis. Ratio vs. Obiter: Ratio - Confiscation, redemption fine and penalties cannot be imposed where contractual evidence and remittance establish the transaction value and where the record lacks independent proof of deliberate mis-declaration; reliance on improperly procured statements is inadmissible to sustain such measures. Conclusions: Confiscation, redemption fine and penalties under the cited sections were not sustainable on the material; they were set aside. Issue 5: Admissibility and weight of statements under Section 108 without compliance with Section 138B Legal framework: Statements under Section 108 are admissible subject to statutory procedural safeguards; Section 138B prescribes compliance for certain testimonial processes and protections affecting admissibility/weight. Precedent Treatment: Decisions require compliance with Section 138B before relying on such statements; failure to comply weakens reliance. Interpretation and reasoning: The adjudicating authority relied on statements recorded under Section 108, but Section 138B procedural requirements were not complied with; therefore such statements could not be treated as reliable corroborative evidence to sustain rejection of FOB or imposition of penalties. Ratio vs. Obiter: Ratio - Statements recorded under Section 108 without compliance with Section 138B cannot be given decisive weight to justify valuation rejection or penal consequences. Conclusions: Reliance on those statements was inappropriate and such reliance did not provide a lawful basis for adverse valuation/penal findings.