TaxTMI 
TaxTMI 
2023 (3) TMI 1080
X X X X Extracts X X X X
X X X X Extracts X X X X
.... value of goods as per NIDB data under Rules of Customs Valuation Rules, 2007 and assessed bills of entry. Therefore, Appellants challenged the assessment before the Commissioner (Appeals) and has also claimed the benefit of Notification No. 30/2004-CE dtd. 19.07.2014 as amended by Notification No. 34/2015-CE dtd. 17.07.2015. However Ld. Commissioner (Appeals) vide impugned orders-in-appeal has upheld the order of original adjudication authority. Aggrieved by the said Orders -In-Appeal the Appellants have filed theses appeals. 3. Shri Jatin Mahajan, Learned Advocate appearing on behalf of the appellant submits that the lower authorities have erred in invoking the provisions of Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 which is precursor for rejection of declared value. Ld. Authorities have failed to give consideration to the contracts registered by the appellant prior to causing import of the goods under consideration. NIDB data cannot be the sole ground for rejection of the transaction value without any evidence to prove that the goods under import have been undervalued. 3.1 Without prejudice to the conditions that NIDB data cannot b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing a higher price. The action of department and orders in rejecting transaction value of the goods imported by the appellant on such ex-facie erroneous basis is therefore liable to be set aside. 3.5 He further submits that unless the price actually paid for the particular transaction falls within the exemption in Rule 3(2), the customs authorities are bound to assess the duty on the transaction value. Both Section 14(1) and Rule 3 provide that the price paid by an importer to the vendor in the ordinary course of commerce shall be taken on the value in the absence of any special circumstance indicated in Section 14(1) and particularized in Rule 3(2). 3.6 He also argued that in the present matter Ld. Commissioner failed to appreciate that the benefit of Exemption Notification No. 34/2015 dtd. 17.07.2015 was available on goods in question and the adjudicating authority has not dealt with the issue at all despite specific plea of the appellant .Therefore CVD charged and collected in the Bills of Entry is without the authority of law. He placed reliance on the following decisions. • SRF Ltd. Vs. Commissioner -2015(318)ELT 607(SC) • Commissioner Vs. Ashim....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dispute in the present case is regarding the valuation of the goods imported by the Appellants. The Assessing Authority re-assessed the imported goods at values higher than what was declared by the Appellants in the Bills of Entry. The revenue enhanced value as per NIDB data. We observed that the transaction value declared by the importer should form the basis of assessment unless the same is rejected, for the reasons set out in Rules of the Customs Valuation Rules. 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. However, the requirement of Section 14 and the Customs Valuation Rules need to be satisfied ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsaction value. But the mandate is not invariable and is subject to certain exceptions specified in Rule 4(2) namely : (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which - (i) are imposed or required by law or by the public authorities in India; or (ii) limit the geographical area in which the goods may be resold; or (iii) do not substantially affect the value of the goods; (b) the sale or price is not subject to same condition or consideration for which a value cannot be determined in respect of the goods being valued; (c) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Rule 9 of these rules; and (d) the buyer and seller are not related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule (3)." 9.These exceptions are in expansion and explicatory of the special circumstances in Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... computed under Rule 7A. When value of the imported goods cannot be determined under any of these provisions, the value is required to be determined under Rule 8 "using reasonable means consistent with the principles and general provisions of these rules and sub-section (1) of Section 14 of the Customs Act, 1962 and on the basis of data available in India." If the phrase 'the transaction value' used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14.It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules. 15.The Assistant Collector in this case determined the value of the imported goods under Rule 8. The question is whether he should have determined the transaction value under Rule 4 at the price actually paid by the appellant for the 1989 be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... available to all and based on logical commercial bases, they cannot be denied under Section 14. It appears from the judgment that a distinction was drawn between a discounted price special to a particular customer and discounts available to all customers. 21.As already noted all these cases dealt with imports made prior to the coming into force of the Rules in 1988. Now the 'special considerations' are detailed statutorily in Rule 4(2). 22.In the case before us, it is not alleged that the appellant has mis-declared the price actually paid. Nor was there a mis-description of the goods imported as was the case in Padia Sales Corporation. It is also not the respondent's case that the particular import fell within any of the situations enumerated in Rule 4(2). No reason has been given by the Assistant Collector for rejecting the transaction value under Rule 4(1) except the price list of vendor. In doing so, the Assistant Collector not only ignored Rule 4(2) but also acted on the basis of the vendor's price list as if a price list is invariably proof of the transaction value. This was erroneous and could not be a reason by itself to reject the transact....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation. - (1) For the removal of doubts, it is hereby declared that :- (i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9. (ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include - (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial....
X X X X Extracts X X X X
X X X X Extracts X X X X
....respect of similar goods. From the above provisions, it is clear that if there is any doubt about the transaction value declared by the assessee, then if at all the value of contemporaneous import needs to be applied, the value of identical goods or similar goods should be applied. However, in the present case though the contemporaneous import goods were relied upon, but both the adjudicating authority failed to ascertain that whether the goods of contemporaneous imports is identical or similar to the goods of the assessee . Appellants have disputed the said comparable data on the ground that contemporaneous goods provided by the revenue is for Polyester Knitted Fabrics whereas goods imported by the appellant are of Mixed lot of Polyester Knitted Fabric (Rolls of Assorted Colors & Weight), the value of the above referred type of fabrics is low because the goods are mixed lot of fabrics of different colours and different weight and quality is not same as fresh quality polyester knitted fabrics. 4.6 We noticed that in present matter no effort was made by the adjudicating authority to ascertain quality, quantity, characteristics of the goods of contemporaneous import. In the pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Countervailing Duty (CVD). In order to claim the exemption notification, the appellant challenge the Bill of Entry assessment before the Commissioner (Appeals) who has rejected the appeal on the following two grounds.:- i) The appellant has not lodged any protest at the time of assessment. ii) The appellant has failed to fulfill the conditions of Notification No. 30/2004-CE dated 09.07.2004 as amended i.e. non taking of Cenvat Credit on inputs/capital goods. We find that the appellant in principle entitle for exemption Notification as the condition of non availment of Cenvat Credit need not to be satisfied by the importer in respect of imported goods. The same has been clarified by the Central Board of Excise and Customs vide Circular No. 1005/12/2015-CX dated 21.07.2015. The same is reproduced below:- Circular No. 1005/12/2015-CX, dated 21-7-2015 Make in India Policy - Removal of disadvantage to domestic manufacturers vis-a-vis importers Circular No. 1005/12/2015-CX., dated 21- 07-2015 F. No. 336/4/2015-TRU Government of India Ministry of Finance (Department of Revenue) Central Board of Exci....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the concurrence of the Ld. Attorney General, notifications No. 34/2015- C.E., No. 35/2015-C.E. and No. 36/2015-C.E. all dated 17-7-2015 were issued amending the conditions in notifications No. 30/2004-C.E., dated 9-7- 2004, No. 1/2011-C.E., dated 1-3-2011 and No. 12/2012-C.E. dated 17-3- 2012, respectively. 6. In the above context, apprehensions have been raised about the use of the phrase of "appropriate duty". In this regard. Explanations have been inserted in the notifications No. 30/2004-C.E., dated 9-7-2004, No. 1/2011- C.E., dated 1-3-2011 and No. 12/2012-C.E., dated 17-3-2012 so as to clarify that the appropriate duty or appropriate additional duty or appropriate service tax for the purposes of the said notifications/entries includes nil duty or tax or concessional duty or tax, whether or not read with any relevant exemption notification for the time being in force. 7. It may, therefore, be noted that the domestically manufactured goods covered under these notifications/entries continue to be exempt from excise duty or subject to concessional rate of excise duty, as the case may be, as they were prior to 17th July, 2015. 8. Trade Notice/Public Not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rities have taken support of the decision in the case of PRASHRAY OVERSEAS PVT LTD-2016 (338) ELT 44 (Mad.). This Tribunal in the case of ENTERPRISES INTERNATIONAL LTD.-2017 (346) ELT 423 (TRI.-CHENNAI). Even after considering the judgment in case of PRASHRAY OVERSEAS PVT LTD (Supra) held that the exemption Notification No. 30/2004-CE in respect of CVD on imported goods is admissible. The relevant order in ENTERPRISES INTERNATIONAL LTD (Supra) is reproduced below:- "11. We have carefully considered the submissions of both sides and also perused the records, case laws and the Revenue's grounds of appeal. The short issue in all these Revenue appeals against the admissibility of CVD exemption on the imported goods i.e. Silk Yarn and Silk Fabrics under Notification No. 30/2004-C.E., dated 9-7-2004 where LAA has allowed the benefit. We find that the respondents appealed against the assessment of Bill of Entries where CVD has been charged without giving the benefit of the notification. The LAA in the impugned orders while allowing the appeal has discussed the issue in detail and also relied on this Tribunal's Division Bench decisions in the case of Prashray Overseas Pvt.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the CCR, 2002." This very issue was discussed in the case of Prashray Overseas Pvt. Ltd. [2009 (235) E.L.T. 300 (Tri.- Chennai). The relevant Paragraph 3 of the order is reproduced as under :- "3. We find that no Central Excise duty is payable on raw silk produced in India. Yarn manufactured from such silk is also exempt under Notification No. 30/2004 as no credit availed input is used to manufacture silk yarn. Therefore indigenous silk fabrics manufactured from indigenous silk yarn are exempt from Central Excise duty. Another stream in which silk fabrics get manufactured in India is using imported silk yarn. Neither party disputes that imported silk yarn was exempt from CVD during the material period in terms of Notification No. 20/2006- Cus., dated 1-3-2006. We find that the levy of CVD on imports is regulated by the following provisions of the Customs Tariff Act, 1975. "3. Levy of additional duty equal to excise duty. - Any article which is imported into India shall, in addition, be liable to a (1....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 20 4. As per the aforesaid entry, the rate of duty is nil. Condition No. 20 of this Notification, which was relied upon by the authorities below in denying the exemption from payment of CVD, is to the following effect : " 20. If no credit under rule 3 or rule 11 of the Cenvat Credit Rules, 2002, has been taken in respect of the inputs or capital goods used in the manufacture of these goods." 5. The aforesaid condition is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the Cenvat Credit Rules, 2002, in respect of the capital goods used for the manufacture of these goods. 6. In the present case, admitted position is that no such Cenvat credit is availed by the appellant. However, the reason for denying the benefit of the aforesaid Notification is that in the case of the appellant, no such credit is admissible under the Cenvat Rules. On this basis, the CEGAT has come to the conclusion that when the credit under the Cenvat Rules is not admissible to the appellant, question of fulfilling the aforesaid condition does not arise. In holding so, it followed the judgment of the Bombay High Court in the case of As....
X X X X Extracts X X X X
X X X X Extracts X X X X
....produced or manufactured in India. The words "if produced or manufactured in India" do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such an article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. For quantification of additional duty in such a case, it has to be imagined that the article imported had been manufactured or produced in India and then to see what amount of excise duty was leviable thereon." (Emphasis supplied) 8. We are of the opinion that on the facts of these cases, these appeals are squarely covered by the aforesaid judgments. We accordingly hold that appellants were entitled to exemption from payment of CVD in terms of Notification No. 6/2002. The appeals are allowed and the demand of CVD raised by the respondents-authorities is set aside." The rati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 236. From the reading of paras 39 to 41 of the said judgment it becomes clear that though these cases were held not applicable to the fact situation and were distinguished, the Court did not say that the aforesaid judgments were incorrectly decided. In fact, by distinguishing the ratio of the said cases, the Constitution Bench impliedly gave its imprimatur to the principle laid down in the aforesaid judgments." 16. In view of the above ruling by Apex Court, we are unable to accept the Revenue's plea that the Apex Court decision of SRF Ltd. and M/s. Motiram Tolaram are in direct conflict. Hon'ble Supreme Court has clearly considered all the previous decisions of Apex Court including the decision in the case of Motiram Tolaram v. UOI (supra). Therefore, the Revenue relying on the above case law and also the LB decision in the case of M/s. Priyesh Chemicals & Metals (supra) are not relevant. In view of the latest decision of Apex Court in SRF case &AIDEK Tourism Services Pvt. Ltd., the issue of CVD exemption under Notfn. No. 30/2004 on imported goods has attained finality. This Tribunal Bench decisions in the case of M/s. Prashray Overseas Pvt. Ltd. v. CC, Chennai st....