TaxTMI 
TaxTMI 
2024 (9) TMI 170
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.... C/52031/2019 C/52032/2019 Hon'ble Mr. Justice Dilip Gupta, President And Hon'ble Mr. P.V. Subba Rao, Member (Technical) For the Department : Shri S.K. Rahman, Authorized Representative. For the Respondents : Shri K. Krishnamohan Menon, Ms. Parul Sachdeva & Ms. Priya, Advocates. ORDER JUSTICE DILIP GUPTA: M/s Century Metal Recycling Pvt. Ltd. [Century Metal] imported aluminum scrap of various grades and filed 28 Bills of Entry for clearing the consignment on the basis of self-assessment of duty on the transaction value. The Assessing Officer doubted the correctness of the value declared by Century Metal in the Bills of Entry and when confronted with contemporaneous data by the Assessing Officer, Century Metal not only submitted letters stating that the value declared in the Bills of Entry should be rejected, but also accepted the value proposed by the Assessing Officer. The value was, accordingly, enhanced by the Assessing Officer and Century Metal paid the differential duty of customs. The goods were also cleared after the out of charge order was issued by the Assessing Officer. Thereafter, Century Metal filed 28 appeals before the Commissioner (Appeals), Central....
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....be on the lower side, should not be rejected under rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 [the 2007 Valuation Rules] and re-determined. On being confronted with such data, Century Metal submitted the following letter to the Assessing Officer in respect of one such Bill of Entry No. 8175381 dated 24.09.2018: "CENTURY METAL RECYCLING LIMITED To, The Assistant Commissioner of Customs, ICD Kanakpura Jaipur (Rajasthan) Subject: Enhancement of value of goods covered under Bill of Entry No. 8175381 dated 24/09/18 Proposing re determination of value and consequential reassessment of duty, in this regard it is submitted that we have been informed about grounds or rejection of our declared value under the provisions of Rule 12 of Customs Valuation (Determination of Value of Imported Goods) rules, 2017 read with Section 14 of Customs Act, 1962. We have also gone through and understood the details of contemporaneous imports of similar/identical goods, as informed by the Customs Department and we accept that the value declared by us is lower than the value at which identical/similar goods have been ....
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....e 2007 Valuation Rules read with section 14 of the Customs Act, 1962 [the Customs Act]. In the letter submitted by Century Metal in respect of Bill of Entry No. 8175381 dated 24.09.2018, it was specifically stated that the value of the goods imported should be enhanced on the basis of the contemporaneous data of similar/identical goods from US$ 940 to US$ 1628 under rule 9 of the 2007 Valuation Rules read with section 14 of the Customs Act in terms of the provisions of the section 17 (5) of the Customs Act. In the remaining 56 letters that were submitted by Century Metal and CMR Nikkei before the Assistant Commissioner of Customs, similar statements were also made. It also needs to be noted that both Century Metal and CMR Nikkei also stated that they were "in agreement and not aggrieved with the proposed enhancement of value". They also stated that in view of their acceptance of the said value, personal hearing may not be provided to them nor a speaking order should be passed in the matter. They also requested the Assessing Officer to re-determine the value and re-assess the Bills of Entry in accordance with the value proposed by them. 7. The Assessing Officer, in view of the ca....
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....g authority. The value declared by the appellants is accepted and all the 57 appeals filed by them are allowed with consequential relief." (emphasis supplied) 9. Shri, S.K. Rahman, 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 importers as they were grossly undervalued as compared to the contemporaneous import data and since the importers had submitted letters clearly stating that they accepted that the value declared by them in the Bills of Entry was on the lower side and, therefore, liable to be rejected under rule 12 of the 2007 Valuation Rules, and they also accepted the value of goods indicated by the Assessing Officer on the basis of data of contemporaneous import of similar/identical goods, and also stated that they did not want any personal hearing to be provided or a speaking order to be passed in the matter, and that the Assessing Officer should redetermine the value and re-assess the duty in accordance with the value proposed, the Assessing Officer committed no illegality in re-determ....
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.... 10. Shri Krishna Mohan K. Menon, learned counsel assisted by Ms. Parul Sachdeva and Ms. Priya, however, supported the impugned order and submitted that it does not call for any interference in this appeal. Learned counsel made the following submissions: (i) The so-called 'consent/acceptance letters' which have been relied upon heavily by the Assessing Officer to adopt the enhanced value in terms of the 2007 Valuation Rules cannot be considered as consent letters as the same have been obtained under pressure to clear the goods to avoid any further delay; (ii) The value that has been enhanced by the Assessing Officer is exactly the value arrived at on the basis of London Metal Exchange [LME] price minus the discount given in the Director General of Valuation Circular. This clearly shows that the enhancement of value is not on the basis of contemporaneous import data, but is based on Director General of Valuation Circular, irrespective of the mention made in the consent letter by the importers that they have gone through the contemporaneous import data; (iii) Due to urgency of the matter and to mitigate losses, including demurrage charges, the importers had....
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.... the 57 Bills of Entry. 13. Section 14 of the Customs Act deals with 'valuation of goods' and is reproduced below: "Section 14. Valuation of goods. - (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: Provided *****" 14. It would be seen that section 14 of the Customs Act provides that the transaction value of goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer and the seller of the goods are not related and the price is the sole consideration for the sale, subject to such other conditions as may be specified in the rules....
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....e powers conferred by section 14 of the Customs Act. Rule 3 deals with the determination of the method of valuation and it is 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 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 10 ....
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....ities in a comparable commercial transaction were assessed; (b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture or production; (e) the non declaration of parameters such as brand, grade, specifications that have relevance to value; (f) the fraudulent or manipulated documents." 19. Sub-rule (1) of rule 3 provides that subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with rule 10. Sub-rule (4) of rule 3 provides that if the value cannot be determined under sun-rule (1), the value shall be determined sequentially through rules 4 to 9. 20. Rule 12 provides that when the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in th....
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....e, in view of the decision of the Tribunal and the Supreme Court in Sanjivani Non-Ferrous Trading, set aside the enhancement made in the assessment order and accepted the value declared by Century Metal and CMR Nikkei in the 57 Bills of Entry filed by them. 23. It would, therefore, be appropriate to reproduce the judgment of the Supreme Court in Sanjivani Non-Ferrous Trading, as it is this decision on which reliance has been placed by the Commissioner (Appeals). The relevant portions of the judgment of the Supreme Court are reproduced below: "The issue raised in these appeals pertains to the transaction value/assessable value in respect of imported Aluminum Scrap, which was imported by the respondent herein. The respondent had imported various varieties of the said Aluminum scrap during the period 27th August, 2013 to 29th December, 2014 and filed 843 Bills of Entry along with invoices and purchase orders in respect therein declaring the transaction value of the imported goods for the purpose of paying Customs duty. The declared value was not accepted by the Assessing Officer who found the same to be low. Accordingly, the said declared value was rejected and reassessmen....
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....Senior Counsel appearing for the respondent that the reason given for setting aside the order that the normal rule was that the assessable value has to be arrived at on the basis of the price which was actually paid, and that was mentioned in the Bills of Entry. The Tribunal has clearly mentioned that this declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the Assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the price declared in the Bills of Entry, Order-in-Original was, therefore, clearly erroneous. 14. In Commissioner of Customs v. Prabhu Dayal Prem Chand, (2010) 13 SCC 535 = 2010 (253) E.L.T. 353 (S.C.), this Court was confronted with almost same kind of fact situation. On the basis of the information received subsequently from the London Metal Exchange (for short, 'LME') to the effect that the price of the two metals, viz., brass scrap and copper scrap, in LME as on the date of import was more than the price declared by the respondent, demanded additional duty amounting to Rs. 90,248....
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....e are imports of identical goods or similar goods at around the same time at a higher price. In order to invoke such a provision the Supreme Court held that it would be incumbent upon the Assessing Officer to give reasons as to why the transaction value declared in the Bills of Entry was being rejected, and to give reasons supported by material on the basis of which the Assessing Officer arrives at the assessable value. 25. In the present case, as noticed above, the importers had made a categorical statement that they were accepting that the value declared by them in the Bills of Entry was lower than the value at which identical/similar goods had been imported at or about the same time in comparable quantities and in comparable commercial transactions and so the value declared by them in the Bills of Entry should be rejected under rule 12 of the 2007 Valuation Rules and re-determined under rule 9 on the price made known to them by the Assessing Officer, which price they were accepting. The importers also specifically stated that because of the acceptance of the enhanced value, they did not want any personal hearing to be provided or a speaking order to be passed and that the val....
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....h or accuracy of the value declared by them in the Bills of Entry and seek a reasonable opportunity of being heard, but they did not do so. On the other hand, the importers submitted in writing that though they had declared the value of the imported goods in the Bills of Entry, but on being shown contemporaneous data they agreed that the value of the goods should be rejected and re-determined on the basis of the value proposed by the Assessing Officer. The importers also specifically stated that they did not want a personal hearing to be provided to them or a speaking order to be passed. It needs to be noted that section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importers confirm acceptance of the value in writing. 30. It is no doubt true that the value of the imported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the rules to be made in this behalf. The 2007 Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper o....
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....ade by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested. (h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 16. Proper officer can therefore reject the declared transactional value based on certain reasons to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression grounds for doubting the truth or accuracy of the value declared has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the reason to doubt exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared." (emp....
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....(223) ELT 605 (Tri.-Kol)], held that as the appellant therein had expressly given consent to the value proposed by the department and stated that it did not want any show cause notice to be issued or personal hearing to be provided, it was not necessary for the department 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 situatio....
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....cepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled 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) 38. In Guardian Plasticote Ltd., 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 Tribun....
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....er of Customs, New Delhi (Import & General) vs. Namo Alloys Pvt. Ltd. [Customs Appeal No. 60202 of 2020 decided on 29.11.2023]. 42. It would also be pertinent to refer to the decision of the Allahabad High Court in S.S. Overseas vs. Union of India [2022 (382) E.L.T. 26 (All.)]. The facts before the Allahabad High Court were almost similar. The importer had confirmed in writing his acceptance of the re-assessment and, therefore, a speaking order was not passed. The relevant portions of the judgment of the Allahabad High Court are reproduced below: "6. Section 17 of the Customs Act, 1962 (hereinafter referred to as the 'Act, 1962') provides for assessment of duty. Under sub-section (1) of Section 17, an importer entering any imported goods under Section 46 of the Act, 1962 or an exporter entering any export goods under Section 50, shall, save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods. Sub-section (2) of Section 17 provides for verification of entries and self-assessment of goods referred to in sub-section (1) by the proper officer. Sub-section (4) of Section 17 provides for reassessment of duty by the proper officer where th....
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....eme Court regarding the compelling circumstances under which it was forced to sign the acceptance letter. 46. These contentions were not accepted by the Supreme Court. It was held that the plea raised was bereft of any details and particulars and cannot be anything but a bald assertion. The Supreme Court pointed that since there was no protest or demur raised around the time or soon after the letter was signed, the documents cannot be said to have been submitted because of any coercion or undue influence. The Supreme Court pointed out in clear terms that a bald plea of coercion is not enough and the party which sets up such a plea must prima facie establish the same by placing material. The relevant portions of the judgment of the Supreme Court are reproduced below: "3. On 11-3-2011 the respondent signed a detailed letter of subrogation which was on a stamp paper, accepting Rs. 5,96,08,179 in full and final settlement of its claim under the policy and the relevant portion of the said letter dated 11-3-2011 was to the following effect: To, New India Assurance Co. Ltd. Regional Office Nehru Place, Tonk Road, Jaipur Dea....
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....in documents, including a pre-prepared discharge voucher for the said amount in advance, which the Petitioner Company were forced to do so in the period of extreme financial difficulty which prevailed during the said period. As stated aforesaid, the Petitioner Company was forced to sign several documents including a letter accepting the loss amounting to Rs. 6,09,55,406 and settle the claim of Rs. 5,96,08,179 as against the actual loss amount of Rs. 28,79,08,116 against the interest of the Petitioner company. The said letter and the aforesaid pre-prepared discharge voucher stated that the Petitioner had accepted the claim amount in full and final settlement and thus, forced the Petitioner company to unilateral acceptance the same. The Petitioner company was forced to sign the said document under duress and coercion by the Respondent Company. The Respondent Company further threatened the Petitioner Company to accept the said amount in full and final or the Respondent Company will not pay any amount toward the fire policy. It was under such compelling circumstances that the Petitioner company was forced and under duress was made to sign the acceptance letter." 10. In our con....
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....r on 17-3-2008. ***** 3. On 21-9-2012, the contractee company submitted a no-dues/no-claim certificate certifying the payment of all the bills and in total settlement of all the claims whatsoever against the contract. Thereafter, on 10-10- 2012, the appellant herein the contractor company made a payment of the final bill of Rs. 20.34 crores to the contractee company. 4. Subsequently, on 24-10-2012, the contractee company withdrew letter dated 21-9-2012 for "nodues/no-claim certificate" stating that it was a prerequisite condition for release of their long due legitimate payment against the work executed under the contract and the same was furnished by the contractee company under duress and coercion of the appellant contractor. ***** 24. From the materials on record, we find that the contractee-Company had issued the "No Dues/No Claim Certificate" on 21.09.2012, it had received the full amount of the final bill being Rs. 20.34 crores on 10.10.2012 and after 12 days thereafter, i.e., only on 24.10.2012, the contractee-Company withdrew letter dated 21.09.2012 issuing "No Dues/No Claim Certificate". Apart from it, we also find that the Final Bill ha....
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....ge in which they are couched. The relevant portion of the judgment of the Supreme Court is as follows: "We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion." (emphasis supplied) 49. The contention of the learned counsel for the respondents that the importers had been coerced to submit letters has to be examined in the light of the principles enunciated by t....
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.... have been cleared after payment of differential customs duty and out of charge order, the proper officer, due to non-availability of the imported goods cannot determine the value. This, therefore, appears to be a well thought of method by the importers to get the valuation determined on the amount indicated in the Bills of Entry without any adjudication and without having to substantiate the transaction value indicated by them in the Bills of Entry. 53. It does transpire from the modus operandi adopted by the importers that they had worked out a well thought of plan to clear the goods at the transaction value indicated by them in the Bills of Entry. When the Assessing Officer doubted the value mentioned in the Bills of Entry, they readily agreed to give consent letters not only stating that the value indicated by them in the Bills of Entry should be rejected and determined in accordance with the enhanced value proposed by the Assessing Officer, but also stated that they would not require a show cause notice to be issued or a speaking order to be passed and subsequently, when the Assessing Officer enhanced the value based on the consent letters given by the importers and the goo....
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....stoms authorities had compelled and forced the appellant to furnish the letter dated 06.03.2017. The Supreme Court further observed that since reasons have to be communicated in terms of rule 12 of the 2007 Valuation Rules before the proper officer can proceed to make assessment under rules 4 to 9 after rejecting the transaction value, the adjudication order was flawed as it did not give good and cogent reasons in terms of section 14(1) of the Customs Act and rule 12 of the 2007 Valuation Rules for rejecting the transaction value as declared in the Bills of Entry. The Supreme Court also observed that that Valuation Alerts are issued by the Director General of Valuation based on the monitoring of valuation trends of sensitive commodities with a view to take corrective measures, but they should not be construed as interfering with the discretion of the assessing authority who has to pass the order in the given factual matrix. The Supreme Court further observed that such matters have to be examined on case to case basis on the basis of the evidence before the authorities and the material placed on record and the enquires conducted by the assessing authority. 55. This judgment of th....
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....51997/2019 29.09.2018 04.10.2018 23 C/51998/2019 26.09.2018 04.10.2018 24 C/51999/2019 29.09.2018 04.10.2018 25 C/52000/2019 29.09.2018 05.10.2018 26 C/52001/2019 29.09.2018 04.10.2018 27 C/52002/2019 29.09.2018 04.10.2018 28 C/52003/2019 03.10.2018 05.10.2018 29 C/52004/2019 20.09.2018 01.10.2018 30 C/52005/2019 20.09.2018 25.09.2018 31 C/52006/2019 22.09.2018 01.10.2018 32 C/52007/2019 22.09.2018 04.10.2018 33 C/52008/2019 24.09.2018 29.09.2018 34 C/52009/2019 29.09.2018 04.10.2018 35 C/52010/2019 29.09.2018 04.10.2018 36 C/52011/2019 29.09.2018 04.10.2018 37 C/52012/2019 04.10.2018 10.10.2018 38 C/52013/2019 04.10.2018 11.10.2018 39 C/52014/2019 04.10.2018 09.10.2018 40 C/52015/2019 17.10.2018 31.10.2018 41 C/52016/2019 15.10.2018 20.10.2018 42 C/52017/2019 13.10.2018 20.10.2018 43 C/52018/2019 10.10.2018 23.10.2018 44 C/52019/2019 09.10.2018 20.10.2018 45 C/52020/2019 05.10.2018 12.10.2018 46 C/....
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....ed at or about the same time in comparable quantities and in comparable commercial transaction were assessed at other ports of the country". 62. Learned counsel appearing for the respondents also placed reliance upon certain decisions passed by the Tribunal to contend that the transaction value has to be first rejected and thereafter the assessing officer can re-assess with reasons and in accordance with the provisions of the 2007 Valuation Rules. 63. The decisions of the Tribunal in Agarwal Foundries (P) Ltd. vs. Commissioner of Customs [2020 (371) E.L.T. 859 (Tri.-Hyd.)], Topsia Estates Pvt. Ltd. vs. Commr. of Cus. (Import-Seaport), Chennai [2015 (330) E.L.T. 799 (Tri.-Chennai)] and Commissioner of Customs, New Delhi vs. Nath International [2013 (289) E.L.T. 305 (Tri.-Del.)] on which reliance has been placed by the learned counsel for the respondents merely hold that the department cannot reject the declared value and assess the goods as per the NIDB data. 64. Learned counsel for the respondents also submitted that merely because the enhancement value was arrived at on the basis of letters submitted by the importers would not mean that the statutory right of appeal avail....
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....volved in each of the appeals is below the threshold limit for filing appeals in terms of the Central Board of Indirect Taxes and Customs Instructions dated 17.08.2011, as amended on 30.12.2016. 69. This issue was considered at length by the Tribunal and by an order dated 21.03.2024 it was rejected and it was ordered that the appeals would be heard on merits. 70. Learned counsel for the respondents has placed the order dated 01.07.2024 passed by the Delhi High Court in CUSAA 57/2024 (M/s. CMR Nikkei India Pvt. Ltd. vs. Commissioner of Central Excise and Customs, Central Goods & Service Tax, Jaipur-I) and CUSAA 58/2024 (M/s. Century Metal Recycling Ltd. vs. Commissioner of Central Excise and Customs, Central Goods & Service Tax, Jaipur-I). In the two appeals before the Delhi High Court, the order dated 21.03.2024 passed by the Tribunal was assailed. The order dated 01.07.2024 passed by the Delhi High Court in the two appeals is reproduced below: "1. These two appeals impugn orders passed by the Customs, Excise and Service Tax Appellate Tribunal ['Tribunal'] negativing a challenge raised to the maintainability of the appeals instituted by the Department on the ground o....