TaxTMI 
TaxTMI 
2023 (9) TMI 1402
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....19 C/52625/2019 C/52626/2019 C/52627/2019 C/52628/2019 C/52629/2019 C/52630/2019 C/52655/2019 C/52656/2019 C/52657/2019 C/52658/2019 C/52659/2019 C/52660/2019 C/52661/2019 C/52662/2019 C/52663/2019 C/52664/2019 C/52665/2019 C/52666/2019 C/52667/2019 C/52668/2019 C/52669/2019 Hon'ble Mr. Justice Dilip Gupta, President Hon'ble Mr. P.V. Subba Rao, Member (Technical) For the Appellant : Shri N.L. Jangir, Advocate For the Department : Shri Rakesh Kumar, Authorized Representative ORDER JUSTICE DILIP GUPTA M/s Sumridhi Aluminium (P) Limited, Palwal [the appellant] imported various kinds of scrap of aluminium like zorba, tally and twitch during the period from June 2018 to October 2018 and filed 92 Bills of Entry. The assessing officer enhanced the assessable value on the basis of contemporaneous imports data, which value was accepted by the appellant in writing with a further statement that the appellant would not want a speaking order to be issued nor it would require any show cause notice to be issued or opportunity of personal hearing to be granted. The appellant also deposited customs duty on the enhanced value accepted by the appellant and thereafter out of charge o....
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....t in C.C.E & S.T., Noida vs Sanjivani Non-Ferrous Trading Pvt. Ltd.[2019 (365) E.L.T.. 3 (S.C.)] and other cases to which reference shall be made at the appropriate stage. 3. Shri Rakesh Kumar, learned authorized representative appearing for the Department made the following submissions: i. The Assessing Officer had reason to doubt the accuracy of the value declared in the Bills of Entry submitted by the importer as they were grossly undervalued as compared to the contemporaneous import data and since the importer had submitted letters clearly stating that it agreed for enhancement of the value and did not require any personal hearing or a speaking order, the Assessing Officer enhanced the value. Thus, once having accepted the value of the goods in writing and cleared the goods on payment of duty it was not open to the importer to subsequently challenge the value of the goods; ii. The finding of the Commissioner (Appeals) that the importer had accepted the enhanced value does not suffer from any illegality as it is based on records and the appellant has made an incorrect statement that letters accepting the enhanced value were not submitted by the appellant; ....
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....sponse of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule(1) of rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the 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 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 ....
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....tion 46 or section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under subsection (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods 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 this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under subsection (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where ....
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....uminum scrap from the NIDB date and LME price of prime Aluminum for the corresponding period @________/mt Having taken into consideration factors like insurance, freight, landing charges etc, to arrive at the assessable value of said _Twitch_ (code/grade) Aluminum scrap a discount of _25%_ on the said LME price of prime Aluminum is correct and appropriate. Accordingly, in view of the said contemporarious NIDB date and discount from LME price of prime Aluminum, we voluntarily accept the assessable value of the said@$ 1801/mt. 2. Since we are voluntarily accepting the price of said Twitch_(code/grade) Aluminum scrap, we do not want any speaking order on the re-assessment of the same. We also do not want any Show Cause Notice and opportunity of personal hearing as provided under Section 124 of the Customs Act 1962. 3. It is requested to urgently release our consignment at the above mentioned rate. Yours faithfully Cont. no. 011 46570835 IEC no. 0510080626 FOR SUMRIDHI ALUMINIUM PVT. LTD. Sd- Auth Signatory 12. The aforesaid letter clearly mentions that though the appellant had filed the said Bill of Entry....
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....ant. It is more than apparent that after having accepted the enhanced value and after having paid customs duty and after having received the out of charge orders and after having cleared the goods, that the appellant filed the appeals before the Commissioner (Appeals) to challenge the enhancement of the value of the goods. 15. As noted above, it is because of the letters submitted by the appellant that the goods were cleared after the appellant deposited the requisite customs duty on the enhanced value. There was no reason for the appellant to pay the customs duty on the enhanced value if the appellant was actually contesting the enhanced value and had not submitted any letters accepting the enhanced value. 16. A chart containing Customs Appeal Number, Bill of Entry Number with date, date of acceptance of valuation and out of charge order date, as provided by the department, is reproduced below:- S. No. Customs Appeals Bill of Entry No. Date Date of Acceptance of valuation Out of charge 1. C/52556/2019 6791989 14.06.2018 21.06.2018 02.07.2018 2. C/52557/2019 6975350 23.06.2018 02.07.2018 02.07.2018 3. C/5255....
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.... 33. C/52625/2019 8443739 13.10.2018 15.10.2018 16.10.2018 34. C/52626/2019 8341586 05.10.2018 15.10.2018 16.10.2018 35. C/52627/2019 8033253 13.09.2018 07.09.2018 17.09.2018 36. C/52628/2019 7958476 07.09.2018 14.09.2018 14.09.2018 37. C/52629/2019 8115690 19.09.2018 24.09.2018 25.09.2018 38. C/52630/2019 8195623 25.09.2018 26.09.2018 26.09.2018 39. C/52655/2019 8182085 24.09.2018 01.10.2018 24.09.2018 40. C/52656/2019 8095885 18.09.2018 24.09.2018 25.09.2018 41. C/52657/2019 8056815 15.09.2018 24.09.2018 25.09.2018 42. C/52659/2019 8089709 17.09.2018 19.09.2018 20.09.2018 43. C/52660/2019 7845115 30.08.2018 10.09.2018 10.09.2018 44. C/52661/2019 8443534 13.10.2018 16.08.2018 16.10.2018 45. C/52663/2019 8443543 13.10.2018 16.08.2018 16.10.2018 46. C/52664/2019 8334909 05.10.2018 11.10.2018 11.10.2018 47. C/52666/2019 8332783 05.10.2018 ....
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.....08.2018 78. C/52515/2019 7384589 27.07.2018 17.08.2018 79. C/52516/2019 7538992 07.08.2018 14.08.2018 80. C/52517/2019 7597515 11.08.2018 27.08.2018 81. C/52518/2019 2538893 07.08.2018 13.08.2018 14.08.2018 82. C/52519/2019 2538954 07.08.2018 08.08.2018 83. C/52520/2019 2443064 31.07.2018 07.08.2018 84. C/52521/2019 2384339 27.07.2018 08.08.2018 85. C/52522/2019 7346406 24.07.2018 07.08.2018 86. C/52523/2019 2305961 21.07.2018 08.08.2018 87. C/52524/2019 7262581 18.07.2018 06.08.2018 88. C/52525/2019 7257175 18.07.2018 06.08.2018 07.08.2018 89. C/52526/2019 7257208 18.07.2018 06.08.2018 90. C/52527/2019 7294941 20.07.2018 07.08.2018 91. C/52528/2019 7294936 12.07.2018 03.08.2018 92. C/52529/2019 7178317 29.06.2018 31.07.2018 28.07.2018 17. It....
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....per officer shall, before taking a final decision, intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared and provide a reasonable opportunity of being heard. To remove all doubts, Explanation 1(iii)(a) provides that the proper officer can have doubts regarding the truth or accuracy of the declared value if the goods of a comparable nature were assessed at a significantly higher value at about the same time. 20. Explanation (1)(i) to rule 12 of the Valuation Rules, however, provides that the rule only provides a mechanism and procedure for rejection of declared value and does not provide a method for determination of value and if the declared value is rejected, the value has to be determined by proceeding sequentially in accordance with rules 4 to 9. 21. In Century Metal Recycling Pvt. Ltd. vs Union of India [2019 (367) ELT-(SC)], the Supreme Court summarized the provisions of rule 12 of the Valuation Rules and the observations are as follows : "15. The requirements of Rule 12, therefore, can be summarised as under : (a) The proper officer should have reasonable doubt as to the transactional value on account of ....
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....eated to be the value of the goods, as provided for under rule 3(1) of the Valuation Rules, since none of the conditions stipulated in the proviso to sub-rule (2) of rule 3 were attracted and in any case, if the declared value could not be determined under sub-rule (1) of rule 3, it was required to be determined by proceeding sequentially through rules 4 to 9. 23. Rule 3 of the Valuation Rules is, therefore, reproduced below: "Rule 3. Determination of the method of valuation.- (1) Subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of rule 10; (2) Value of imported goods under sub-rule (1) shall be accepted: Provided that - (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 some condition or consideration for which a value cannot be deter....
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....otta [2008 (223 ELT 605 (Tri.- Kol)] , held that as the appellant therein had expressly given consent to the value proposed by the Revenue and stated that it did not want any show cause notice or personal hearing, it was not necessary for the Revenue to establish the valuation any further as the consented value became the declared transaction value requiring no further investigation or justification. Paragraph 5 of the decision is reproduced below: "5. We have considered the contentions of both sides. 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 long....
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....tled their duty liability once for all and paid the duty amount on the loaded value of the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of loaded value of the goods as determined in the presence of their Representative/Special Attorney and paid the duty thereon accordingly." [emphasis supplied] 28. In Guardian Plasticote., the Tribunal after placing reliance on the decision of the Tribunal in Vikas Spinners, 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 stopped from challenging the same subsequently. It also holds that enhanced value uncontested and voluntarily accepted, and accordi....