TaxTMI 
TaxTMI 
2022 (6) TMI 215
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....enhancing the assessable value before Commissioner (Appeals). The Commissioner (Appeals) refused to interfere in the order enhancing the value. Hence these appeals have been filed by the appellants. 3.1 We have heard Shri H.K. Hirani, Advocate, for the appellants and Shri Manoj Das, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Both sides have filed written submissions. 3.3 We have considered the impugned order along with the submissions made in the appeal and during the course of argument. 3.4 The ld. Counsel for the appellant submitted that the value has been enhanced arbitrarily although at the time of clearance, the appellant accepted the enhanced value to avoid detention and demurrage charges but by filing the appeal they have lodged their protest for not accepting the declared the value. He further submits that redemption fine and penalty imposed on the appellant were also higher side, therefore, he prayed that impugned orders are to be set aside on account of enhancement of value and also prayed for reduction of redemption fine and penalty. To support his contention, he relied on the decision of Laxmi Colour La....
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.... may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. (6) Where re-assessment has not been done or a speaking order has not been passed on re-assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed. Explanation.-- For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 201 1 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received.". 3.6 After the amendments made by the Finance Act, 2011, it became mandatory for the proper officer to pass the speaking order recording the reasons for r....
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....roper officer may verify the self- assessment of such goods, and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary. The power to verify self-assessment lies with the proper officer and for that purpose under Section 17(3), he may require the importer, exporter or any other person to produce such document and furnish such information, etc. If the proper officer on verification has found on examination or testing of the goods or as part thereof or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under the Act, may proceed to re-assess the duty leviable on such goods. Section 17(5) of the Act as amended provides that where re-assessment done under sub-section 17(4) is contrary to the assessment done by the importer or exporter regarding the matters specified therein, the proper officer has to pass a speaking order on the re-assessment, within 15 days from the date of reassessment of the bill of entry or the shipping bill, as the case may be. The explanation to amended Section 17 has clarified that import or export before the amendment ....
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....n other words, if according to law viz. under Section 14(1) the assessable value is the price at which the goods are ordinarily sold in the course of international trade, then that price alone should be the basis for assessable value. In absence of contemporary imports at higher price the invoice value should be accepted. Therefore, mere acceptance of escalated price does not preclude them from challenging the same on the ground that assessable value should be in accordance with Section 14(1) of the Customs Act, 1962. We have already held that telex message cannot be relied upon as evidence of a contemporary import at higher price. Therefore, the appellants are not precluded from challenging the assessable value. We may also refer to judgment of Supreme Court in Dunlop India Ltd. and Others v. Union of India and Others reported in AIR 1977 Supreme Court 597 = 1983 (13) E.L.T. 1566 (S.C.) wherein it was held :- "There is no estoppel in law against a party in taxation matter. If a party, in order to clear the goods for customs, has given the classification in accordance with the wishes of the authorities or even under some misapprehension, and if the law allows it a right to ask fo....
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....d by the importer should form the basis of assessment unless the same is rejected, for the reasons set out in Rule 4(2) of the Customs Valuation Rules. He has further observed that this view finds support in a catena of decisions. 10. The Revenue has challenged the said order in the present appeal. The main ground raised is that the respondent had given his written acceptance of the enhanced values and thereby has forgone his right to speaking order under Section 17(5) of the Customs Act. They have also relied upon several decisions. 11. Section 14 of the Customs Act, 1962 read with Customs Valuation Rules makes it abundantly clear that transaction value in the ordinary course of commerce is to be taken as the assessable value. The Customs Valuation Rules outlines the step- by-step methodology to be adopted for re-determination of the assessable value in certain cases. The primary requirement for re-determination of the value is that the transaction value should be rejected for cogent reasons prescribed in the Customs Valuation Rules. If the transaction value is rejected, then the Customs Valuation Rules prescribes the basis for arriving at the assessable value. 1....
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....We find that whatever may be the reasons, the appellant expressly gave its consent to the value proposed by Revenue and expressly stated that it did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the consented value in effect becomes the declared transaction value requiring no further investigation or justification. To allow the appellant to contest the consented value now is to put Revenue in an impossible situation as the goods are no longer available for inspection and Revenue rightly did not proceed to further collect and compile all the evidences/basis into a Show Cause Notice as doing so, in spite of the appellant having consented to the enhancement of value and requested for no Show Cause Notice, could/would have invited allegation of harassment and delay in clearance of goods. When Show Cause Notice is expressly foregone and the valuation is consented, the violation of principles of natural justice cannot be alleged. In the present case, w....
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....he duty thereon accordingly." [emphasis supplied] 33. In Guardian Plasticote Ltd., the Tribunal after placing reliance on the decision of the Tribunal in Vikas Spinners, had also observed as follows : "4. The learned Advocate also cites the decision of the Tribunal in the case of M/s. Vikas Spinners v. C.C., Lucknow - 2001 (128) E.L.T. 143 (Tri.-Del.) in support of his arguments. We find that the said decision clearly holds that enhanced value once settled and duty having been paid accordingly without protest, importer is estopped from challenging the same subsequently. It also holds that enhanced value uncontested and voluntarily accepted, and accordingly payment of duty made discharges the burden of the department to establish declared value to be incorrect. In view of the fact that the Appellants in this case have not established that they had lodged any protest and on the contrary their letter dated 21-4-1999 clearly points to acceptance of the enhanced value by them, the cited decision advances the cause of the department rather than that of the Appellants contrary to the claim by the learned Counsel." [emphasis supplied] 34. In BNK Intrade (P) Ltd. vs Comm....
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....here is no rejection of the transaction value and in such a scenario, the transaction value has to be adopted as the assessable value. He also observed that though no reasons stand reflected in the Revenue's assessment but the same seems to have been done on the basis of a DRI Alert dated 9-5-2011. 6. As regards the second issue, we find that Commissioner (Appeals) has gone into detailed examination of the provisions of Section 14 as also the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. As rightly observed by him, for adopting the provision of Customs Valuation Rule, the transaction value is required to be rejected as incorrect value. There being no evidence to show that the importer has paid over and above than the transaction value, to the seller of the goods, there is virtually no reasons to reject the transaction value. It is also a settled law that DRI Alerts cannot be adopted as a reason for enhancing the value. As such, we find no infirmity in the views adopted by Commissioner (Appeals) so as to interfere in the impugned order. Accordingly, the appeals filed by the Revenue are rejected." [emphasis supplied] 38. The Tribunal noticed th....
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.... 42. It has to be noted that the two importers, Hanuman Prasad and Niraj Silk, had not made any statement that they have accepted the value of the goods proposed by the Revenue to save demurrage charges nor did they state in the letter that the value was being accepted by them under protest and they would agitate the matter in appeal. It is only in this appeal that it has been suggested that the value was accepted to save demurrage charges, perhaps prompted by the observations made by the Tribunal in Artex Textile Private Limited. 43. Learned Counsel for the Respondent also relied upon the decision of the Tribunal in Commissioner of Customs, New Delhi (ICD TKD) vs M/s Uniexcel Polychem Pvt. Ltd. The Tribunal observed that : "4. On the merit of enhancement of value, we are in agreement with the findings in the impugned order. No detailed reason has been given by the Original Authority for rejection of the transaction value. Apparently he was guided only by DRI alert which formed basis of enhancement of value. It has been repeatedly held by this Tribunal as well as Hon'ble High Courts that the transaction value cannot be rejected mechanically based on suspicion o....
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....rs had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case. 48. Thus, for all the reasons above, the Commissioner (Appeals)was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. 49. When on merits it has been found that the Commissioner (Appeals) committed an error in allowing the appeals, it is not necessary to decide whether the appeals against the accepted transaction value were maintainable or not. 50. All the 36 orders passed by the Commissioner (Appeals)that have been impugned, therefore, deserve to be set aside and are, accordingly, set aside and the 36 Appeals filed by the Commissioner of Customs are allowed." 3.7 After amendments made in 2011 providing for self- assessment as the basis for assessment of the imported goods, Section 17(5) of the Customs Act, 1962 was also amended and it was made mandatory that a....