TaxTMI 
TaxTMI 
2024 (11) TMI 19
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....629/2024, C/51662/2024, C/51695/2024, C/51597/2024, C/51630/2024, C/51663/2024, C/51696/2024, C/51598/2024, C/51631/2024, C/51664/2024, C/51697/2024, C/51599/2024, C/51632/2024, C/51665/2024, C/51698/2024, C/51600/2024, C/51633/2024, C/51666/2024, C/51699/2024, C/51601/2024, C/51634/2024, C/51667/2024, C/51700/2024, C/51602/2024, C/51635/2024, C/51668/2024, C/51701/2024, C/51603/2024, C/51636/2024, C/51669/2024, C/51702/2024, C/51604/2024, C/51637/2024, C/51670/2024, C/51703/2024, C/51605/2024, C/51638/2024, C/51671/2024, C/51704/2024, C/51606/2024, C/51639/2024, C/51672/2024, C/51705/2024, C/51607/2024, C/51640/2024, C/51673/2024, C/51706/2024, C/51608/2024, C/51641/2024, C/51674/2024, C/51707/2024, C/51609/2024, C/51642/2024, C/51675/2024, C/51708/2024, C/51610/2024, C/51643/2024, C/51676/2024, C/51709/2024, C/51611/2024, C/51644/2024, C/51677/2024, C/51710/2024, C/51612/2024, C/51645/2024, C/51678/2024, C/51711/2024, C/51613/2024, C/51646/2024, C/51679/2024, C/51712/2024, C/51614/2024, C/51647/2024, C/51680/2024, C/51713/2024, C/51615/2024, C/51648/2024, C/51681/2024, C/51714/2024, C/51616/2024, C/51649/2024, C/51682/2024, C/51715/2024, C/51173/2024, C/51178/2024, C/51183/2024, ....
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....3/2024, C/51544/2024, C/51463/2024, C/51504/2024, C/51545/2024, C/51716/2024, C/51727/2024, C/51738/2024, C/51749/2024, C/51717/2024, C/51728/2024, C/51739/2024, C/51750/2024, C/51718/2024, C/51729/2024, C/51740/2024, C/51751/2024, C/51719/2024, C/51730/2024, C/51741/2024, C/51752/2024, C/51720/2024, C/51731/2024, C/51742/2024, C/51753/2024, C/51721/2024, C/51732/2024, C/51743/2024, C/51754/2024, C/51722/2024, C/51733/2024, C/51744/2024, C/51755/2024, C/51723/2024, C/51734/2024, C/51745/2024, C/51756/2024, C/51724/2024, C/51735/2024, C/51746/2024, C/51757/2024, C/51725/2024, C/51736/2024, C/51747/2024, C/51758/2024, C/51726/2024, C/51737/2024, C/51748/2024 MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri S.K. Rahman, Authorized Representative of the Department Shri K. Krishnamohan Menon and Ms. Parul Sachdeva, Advocates for the Respondents ORDER These 362 appeals have been filed by the department to assail the orders passed by the Commissioner (Appeals), Central Excise and GST, Jaipur [the Commissioner (Appeals)] by which the speaking orders passed by the Deputy Commissioner of Customs, Inland Container Depot, Concor, Kanakpura, Jaipur [the ....
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...., "Troma", "Taint Tabor" "Tense/Taint Tabor". The show cause notice then proceeds to define the aforesaid categories of aluminium scrap and gives three reasons as to why the price of aluminium scrap, mentioned in the Bills of Entry appeared to be on the lower side. The three reasons are: "4(A)***** On examination of the value declared by the importer (shown in column "K" of Annexure "A" enclosed to this notice) and the reference value calculated on the basis of above DGoV Alert dated 15.11.2018 (shown in column "Q" of the Annexure "A" enclosed to this notice), it is observed that the value declared in relation to imported goods is on quite lower side. It appears that declared prices involves an abnormal discount or abnormal reduction from the ordinary competitive prices, thus, there is reason to doubt the truth and accuracy of the declared value. (B) The Aluminum metal is being traded at a price fixed by London Metal Exchange (LME) is the largest on day to day basis and once the price is settled through market forces, the LME records and publishes such settled prices to vendors around the world, who in turn disseminate the data to industry users across the v....
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....s very nature is not of any standard quality or specification and the price depends on Market Prices prevailing form time to time. Hence assessment of duty can be made only on the basis of transaction value of aluminium scrap in any given case. Therefore, Rule 4, 5 or 9 of Customs valuation rules cannot be relevant for fixation of the assessable value of scrap........ 3. It follows therefore, that even if there are cases of other contemporaneous imports of Aluminium Scrap at higher transaction value the same cannot be a ground for enhancement of transaction value in all case. 4. Therefore, you are requested to accept the transaction value for assessment of the duty without making any enhancement thereof as there is neither any factual nor any legal basis for such enhancement. We hope that you will kindly accept the transaction value and assess duty accordingly. You are requested to kindly pass a reasoned order for any enhancement of the transaction value." (emphasis supplied) 8. Paragraphs 6, 7 and 8 of the show cause notice state why the transaction value of the imported goods cannot be determined under rule 3(1) of the Valuation Rules and was required to b....
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....id Valuation rules. The importer has earlier highlighted the fact and also it is a fact that the Aluminum scrap by its very nature is not of any standard quality or specification i.e. in another words all the consignments may not be identical or similar in terms of Rule 4 or Rule 5 of Customs (Valuation of Imported Goods) Rules-2007 as the consignments may have difference in composition and also for having different countries of origin. Therefore it appears that value may not be determined under Rule 4 and Rule 5 supra. It further appears that the value may also not be determined by deductive method explained in Rule 7 or also by application of Rule 8 of Customs (Valuation of Imported Goods) Rules-2007 through computed value method since the imported goods i.e. Aluminium Scrap is a residual product/Bye product. 8. Further, as the value cannot be re-determined under Rules 4, 5, 7 & 8 of said Valuation Rules due to absence of information about identical and similar goods, and other factors referred to above, hence, the value is to be re-determined in accordance with the provisions of Rule 9 of the Customs Valuation (Determination of value of imported goods) Rules, 2007....
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....espective of country of origin, as mentioned against each Bill of Entry in Column "T" (in USD per Kg.) of the Annexure-"A", under Rule 9 of the said valuation Rules read with Section 14 of the Customs Act-1962. (emphasis supplied) 10. The show cause notice, therefore, calls upon CMR Nikkie to show cause why: "(i) The self assessed value of imported goods, in respect of subject Bills of Entries, mentioned in Column "K" (in US$) & column "I" (in Indian Rupee) of Annexure-"A" should not be rejected under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962. (ii) The value of the imported goods should not be re-determined on the basis of the price of the contemporaneous import of 'Goods of the same class or kind' imported at or about the same time at all the ports of India as mentioned in column-"T" (in US$) & column "U" ( in Indian Rupee) of Annexure "A", in terms of Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962." 11. Annexure 'A' to the show cause notice is a detailed ....
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....g reference to the two decisions of the Supreme Court in CCE & ST, Noida vs. Sanjivani Non-ferrous Trading Pvt. Ltd. [2019 (365) E.L.T. 3 (S.C.)] and M/s Century Metal Recycling Pvt. Ltd. vs. Union of India [2019 (367) E.L.T. 3 (S.C.)] . 14. The Deputy Commissioner passed a detailed speaking order dated 26.03.2021. The Deputy Commissioner noticed that CMR Nikkie had placed reliance upon two decisions of the Supreme Court in Sanjivani Non-ferrous Trading and Century Metal Recycling but found them to be not applicable to the facts of the present case. The Deputy Commissioner pointed out that the DGoV Alert dated 15.11.2018 had been used only as a reference to test the truthfulness and accuracy of the value declared by the importer. The Deputy Commissioner thereafter found that the three reasons mentioned in the show cause notice were sufficient reasons to doubt the truthfulness and accuracy of the value declared by the importer in the Bills of Entry. This conclusion was arrived at on the basis of section 14(1) of the Customs Act and rule 12(1) of the Valuation Rules. The findings recorded by the Deputy Commissioner are as follows: "............In this case the above....
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....en reason to doubt the truth and accuracy of the declared value and the same is liable to be rejected under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962." (emphasis supplied) 15. After having rejected the transaction value shown in the Bills of Entry under rule 12(1) of the Valuation Rules, the Deputy Commissioner re-determined the value under rule 9 of the Valuation Rules after holding that rules 4 to 8 of the valuation would not be applicable. The observations made in this regard are contained in paragraphs 23, 24 and 25 of the order and the same are reproduced below : "23. In view of the above, I hold that the transaction value declared by the importer is not true and fair and hence, cannot be determined under the provisions of sub-rule (1) of rule (3) of the Customs Valuation (Determination of the Value of Imported Goods) Rules, 2007, being the transaction value liable to be rejected under Rule 12 of the Customs Valuation (Determination of the Value of Imported Goods) Rules, 2007. Further, it is held that the value of the impugned goods is required to ....
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....d Bills of Entries are being accordingly re-assessed under the provisions of Section 17(4) of the Customs Act, 1962 and the provisional assessment is being finalized in accordance with the provisions of Section 18(2) of the Customs Act, 1962 by enhancing the declared price mentioned in Column "K" (in USD per Kg.) of the Annexure "A" to the extent of price of contemporaneous imports at or about the same time as the goods being valued, irrespective of country of origin, as mentioned against each Bill of Entry in Column 'T' (in USD per Kg.) of the Annexure-"A", under the provisions of Rule 9 of the Customs Valuation (Determination of the Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962." (emphasis supplied) 16. Similar orders have been passed by the Deputy Commissioner in the remaining matters of Sanjivani, CMR Green and Century Metal. 17. The order passed by the Deputy Commissioner was assailed by the department before the Commissioner (Appeals). After referring to the provisions of section 14 of the Customs Act and rule 12 of the Valuation Rules, the decisions of the Supreme Court in Sanjivani Nonferrous Trading and Century Metal Recy....
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....d by the Hon'ble Supreme Court in the case of Century Metal Recycling Pvt. Ltd. [2019 (367) E.L.T. 3 (S.C.)]*****" 7.10 Further, LME prices of metals also cannot be the basis for determination of value of scrap thereof not only for being contrary to the provisions of Valuation Rules but also contrary to law propounded in various judgments. ***** 7.11 I observe that the adjudicating authority has held that the value of the impugned goods is required to be re-determined on the basis of data pertaining to contemporaneous import of goods of the same class or kind in terms of Rule 9 of the Valuation Rules, observing that the difference in composition or origin may not have any material bearing on the value of the impugned Aluminium Scrap. I find that in the case of Century Metal Recycling Pvt. Ltd. (Supra), the Hon'ble Supreme Court has also decided the issue of enhancement of value on the basis of contemporaneous imports***** 7.12 From the above, it is also coming out that aluminium scrap is not a homogeneous commodity and it is very difficult to find any identical/similar goods imported in India having same chemical and physical composition. I fu....
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.... any evidence, that the importer paid any amount over and above the invoice value and the invoice value was vitiated by non-commercial considerations. This finding is not justified. The entire approach of the Commissioner (Appeals) in holding that the rejection of the transaction value is not justified nor the re-determination of the assessable value is justified is contrary to the well settled principles contained in section 14 of the Customs Act and the Valuation Rules. 20. Learned counsel for the respondents, however, supported the impugned order passed by the Commissioner (Appeals) and made the following submissions: (i) The transaction value declared by the respondents in the Bills of Entry was required to be accepted in terms of section 14 of the Customs Act since the department failed to bring on record any evidence that there was additional flow of consideration to the foreign supplier from the importers so as to raise any dispute with regard to the price at which the goods were imported. Even the show cause notice did not allege that the importer had mis-declared the price or description of the goods; (ii) The rejection of the transaction value by the ....
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....ction 17 of the Customs Act deals with assessment of duty. It is reproduced below: "Section 17. Assessment of duty.- (1) An importer entering any imported goods under section 46, 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. (2) The proper officer may verify the entries made under section 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 sub-section (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 i....
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....stantially 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 sub-sequent 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 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) below: (3) ***** (4) If the value cannot be determined under the provisions of sub-rule (1), the value shall be determined by proceeding sequentially through rule 4 to 9." 27. Rule 4 deals with transaction value of identical goods and it is reproduced below: "4. Transaction value of identical goods.- (1)(a) Subject to the provisions of rule 3, the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about the same time as the go....
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....re value can not be determined under rules 3, 4 and 5.- If the value of imported goods cannot be determined under the provisions of rules 3, 4 and 5, the value shall be determined under the provisions of rule 7 or, when the value cannot be determined under that rule, under rule 8: Provided that at the request of the importer, and with the approval of the proper officer, the order of application of rules 7 and 8 shall be reversed." 30. Rule 7 deals with deductive value and it is as follows: "7. Deductive value.- (1) Subject to the provisions of rule 3, if the goods being valued or identical or similar imported goods are sold in India, in the condition as imported at or about the time at which the declaration for determination of value is presented, the value of imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the greatest aggregate quantity to persons who are not related to the sellers in India, subject to the following deductions : - (i) either the commission usually paid or agreed to be paid or the additions usually made for profits and general expenses in connection ....
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....at the value so determined shall not exceed the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade, when the seller or buyer has no interest in the business of other and price is the sole consideration for the sale or offer for sale. (2) No value shall be determined under the provisions of this rule on the basis of :- (i) the selling price in India of the goods produced in India; (ii) a system which provides for the acceptance for customs purposes of the highest of the two alternative values; (iii) the price of the goods on the domestic market of the country of exportation; (iv) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values." 33. Rule 10 deals with costs and services. 34. Rule 12 deals with rejection of the decl....
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....ch as brand, grade, specifications that have relevance to value; (f) the fraudulent or manipulated documents." 35. The Schedule to the Valuation Rules contains Interpretative Notes. Note to rule 9 is reproduced below: "Note to rule 9 1. Value of imported goods determined under the provisions of rule 9 should to the greatest extent possible, be based on previously determined customs values. 2. The methods of valuation to be employed under rule 9 may be those laid down in rules 3 to 8, inclusive, but a reasonable flexibility in the application of such methods would be in conformity with the aims and provisions of rule 9. 3. Some examples of reasonable flexibility are as follows: (a) Identical goods.- The requirement that the identical goods should be imported at or about the same time as the goods being valued could be flexibly interpreted; identical imported goods produced in a country other than the country other than the country of exportation of the goods being valued could be the basis for customs valuation; customs values of identical imported goods already determined under the provisions of rules ....
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....regarding identical/goods similar goods have also been provided. 37. There are two aspects in this appeal. The first is about the "rejection of value" declared by the importers in the Bills of Entry and the second is with regard to "re-determination of the value". These two will be examined separately. REJECTION OF VALUE 38. The records indicate that aluminium scrap of various grades were imported for which Bills of Entry were filed by CMR Nikkie for clearing the consignment on the basis of self-assessment of duty on the transaction value. 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 made in this behalf. The assessing officer doubted the correctness of the value declared by CMR Nikkie in the Bills of Entry for the following three reasons: (i) The value declared, when compared to the DGoV Alert dated 15.11.2018, was on the lower side; (ii) The di....
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....tment had not produced any evidence. Reference to NIDB data is not relevant since NIDB data talks about assessed value and does not contain any particulars about actual transaction value of any other contemporaneous import of the same or similar good in comparable quantity at or about the same time of import from the same country of origin. The comparison of contemporaneous import price of other goods would be irrelevant as particulars had not been provided by the department. 42. A detailed speaking order as contemplated under section 17(5) of the Customs Act was passed by the Deputy Commissioner on 26.03.2021 for rejection of the value declared in the Bills of Entry. This finding has been set aside by the Commissioner (Appeals) in the order impugned. 43. It would, therefore, be necessary to examine the order passed by the Deputy Commissioner in detail so far as it rejects the transaction value. 44. In paragraph 3 of the order, the Deputy Commissioner extensively refers to the definition of various categories of aluminium scrap by the Institute of Scrap Recycling Industries Inc Washington DC USA issued vide 'Scrap Specification Cir....
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....ejected under rule 12 of the Valuation Rules. 47. The finding recorded by the Deputy Commissioner in the speaking order regarding rejection of the transaction value was set aside by the Commissioner (Appeals). The Commissioner (Appeals) observed that though the Valuation Rules mandated that the value declared by the importer can be rejected only on the basis of reasonable and cogent evidence, but the department failed to discharge this burden. The Commissioner (Appeals) noted that there was nothing on the record to show that the invoice value did not represent the transaction value, more particularly, when there was no allegation of any additional consideration received by the seller. The Commissioner (Appeals) also noticed that no exercise was undertaken by the Deputy Commissioner to reject the value declared in the Bills of Entry. To support the aforesaid conclusions, the Commissioner (Appeals) placed reliance upon the decisions of the Tribunal in Maruti Fabric Impex and Marvel Agencies. The Commissioner (Appeals) also found that the Deputy Commissioner did not discuss the parameters or dimensions related with the nature of the product which were required to ....
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....was significantly lower. Adequate opportunity was given to the importer to submit any further information, including the documents or any other evidence to justify the value declared in the Bills of Entry by issuance of a letter dated 01.10.2020 to CMR Nikkie. No documents were submitted by CMR Nikkie in the reply dated 06.10.2020 and only a statement was made denying that any contemporaneous import of aluminium scrap at higher transaction value had taken place. 52. As the Deputy Commissioner still had a reasonable doubt about the truth and accuracy of the value declared, a show cause notice dated 20.12.2020 was issued to CMR Nikkie specifically mentioning that the transaction value declared by the importer is not true and fair, and hence cannot be determined under rule 3(1) of the Valuation Rules and was, therefore, liable to be rejected under rule 12 of the Valuation Rules. CMR Nikkie submitted a reply dated 20.01.2021 to the show cause notice pointing out that there was no instance of contemporaneous import of similar goods in comparable quantity from the same country of origin at higher transaction value. 53. Annexure 'A' to the show cause notice provide....
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....eclared value is solely based on the NIDB data and other than this, we do not find any contemporaneous imports of similar goods declaring higher value having been referred to, by the said authority. Moreover, it is a fact borne on record that the appellant had tried to impress upon the Assistant Commissioner by furnishing imports of similar goods by various other importers, the value of which almost matched with that of the appellant before us, but however the same has not at all been considered by the said authority. 7.1 It is the settled position of law that NIDB data cannot be the only basis for rejection of the declared value, which has been reiterated by various CESTAT Benches, including the Chennai Bench, in the case of M/s. Almaa Traders v. Commissioner of Customs (Export), Chennai [Final Order No. 40898 of 2023, dated 11-10-2023 in Customs Appeal No. 40935 of 2014 - CESTAT, Chennai] [(2024) 16 Centax 282 (Tri. - Chennai)], ***** 7.2 A similar view was also expressed by this Bench in the case of M/s. Shah B. Impex v. Commissioner of Customs (Imports), Chennai [Final Order No. 40917 of 2023, dated 12-10-2023 in Customs Appea....
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....ed on various transaction values of different goods. The question which falls for consideration is whether the invoice value can be rejected and the duty can be charged as per NIDB data without any specific evidence that the invoice values do not reflect actual transaction value. This issue was decided in respect of the same assessee vide Final Order No. A/30143-30156/2018, dated 29-1-2018. It has been held that the NIDB data can be a guideline for the customs to arrive at the value of the goods but the NIDB data cannot be applied directly unless the value given therein falls within the parameters of identical goods or similar goods. Relying on the decisions in the cases of Topsia Estates Pvt Ltd v. CC (Import Seaport) Chennai [2015 (330) E.L.T. 799 (Tri. - Chennai)], CC New Delhi v. Nath International [2013 (289) E.L.T. 305 (Tri. - Del.), Impex Steel & Bearing Co. v. CC Delhi-IV [2014 (302) E.L.T. 464 (Tri. - Del.)] and Eicher Tractors Ltd v. CC Mumbai [2000 (122) E.L.T. 321 (S.C.)] it has been decided that the department cannot reject the declared value and assess the goods as per the NIDB data." (emphasis supplied) 58. This decision again holds that invoice value cannot be....
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....voice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods........" (emphasis supplied) 60. The aforesaid decision holds that casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods and if the department wants to allege under valuation, it must it must make detailed inquiries and collect material. 61. Learned Commissioner (Appeals) has relied upon the decision of the Tribunal in Maruti Fabric Impex, wherein a finding was recorded that since there was no evidence to show that the importer had paid over and above the transaction value, there was no reason to reject the transaction value. The Commissioner (Appeals), in the present case, has also observed that the transaction value could not be rejected because the Department had failed to even allege that any additional consideration was paid by the importers to the sellers. 62. For rejection of the transaction value, the principles enshrined in section 14 of the Customs Act and the Valuation Rules have to be adhered to. In fact, Explan....
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....ring for the importers, placed reliance upon the decision of the Supreme Court in Century Metal Recycling. The observations of the Supreme Court are as follows: "17. The choice of words deployed in Rule 12 of the 2007 Rules are significant and of much consequence. The Legislature, we must agree, has not used the expression "reason to believe" or "satisfaction" or such other positive terms as a precondition on the part of the proper officer. The expression "reason to believe" which would have required the proper officer to refer to facts and figures to show existence of positive belief on the undervaluation or lower declaration of the transaction value. The expression "reason to doubt" as a sequitur would require a different threshold and examination. It cannot be equated with the requirements of positive reasons to believe, for the word 'doubt' refers to un-certainty and irresolution reflecting suspicion and apprehension. However, this doubt must be reasonable i.e. have a degree of objectivity and basis/foundation for the suspicion must be based on 'certain reasons'. ***** 25. Before closing, we would observe that the Valuation Alerts, as also....
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....variably be accepted in all cases where the imports of aluminium scrap are involved, and the matter has to be examined on a case to case basis on the basis of the evidence and the material placed on record. 69. In the present case, as noticed above, the reason assigned by the Deputy Commissioner for rejection of the transaction value was not based on mere suspicion but was based on proper and objective consideration of the facts. The reasons were also communicated to the importers. 70. The Commissioner (Appeals) was, therefore, not justified in holding that the transaction value declared by the importers in the Bills of Entry could not be rejected. The Deputy Commissioner has given good and cogent reasons for rejecting the transaction value declared by the importers in the Bills of Entry. 'RE-DETERMINATION OF VALUE' 71. After having rejected the value mentioned by the importers in the Bills of Entry, the Deputy Commissioner was required to re-assess the duty leviable on the imported goods and pass a speaking order on the re-assessment. 72. Rule 3(4) of the Valuation Rules provides that if the value cannot be determined under sub-rule (1), it shall b....
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....SD per Kg.) of the Annexure "A" to the extent of price of contemporaneous imports at or about the same time as the goods being valued, irrespective of country of origin, as mentioned against each Bill of Entry in Column 'T' (in USD per Kg.) of the Annexure-"A", under the provisions of Rule 9 of the Customs Valuation (Determination of the Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962." (emphasis supplied) 75. The re-determination of the value by the Deputy Commissioner has also been set aside by the Commissioner (Appeals). The Commissioner (Appeals) held that the enhancement of the value on the basis of the values prescribed in the DGoV Circular is contrary to the provisions of section 14 of the Customs Act and the Valuation Rules in view of the decision of the Supreme Court in Century Metal Recycling. The Commissioner (Appeals) also held that the LME prices of metals cannot also be made the basis for determination of the value of aluminium scrap as that would not only be contrary to the provisions of the Valuation Rules, but also contrary to the decision of the Tribunal in Jindal Strips Ltd. vs. Commissioner of Customs, New Delhi [20....
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....nd provides that where the value of imported goods cannot be determined under the provisions of any of the preceding rules, the value shall be determined using reasonable means consistent with the principles and general provisions of these rules and on the basis of data available in India. It would also be useful to refer to Note to rule 9 contained in the Schedule to the Valuation Rules containing Interpretative Notes. It provides that the methods of valuation to be employed under rule 9 may be those laid down in rules 3 to 8, but a reasonable flexibility in the application of such methods would be in conformity with the aims and provisions of rule 9. Examples of reasonable flexibility have also been provided in rule 3 regarding identical goods and similar goods. The Deputy Commissioner found that the data pertaining to contemporaneous imports had been compiled in column "T" to column "ZA" of Annexure 'A' to the show cause notice and the importer had also been informed that the veracity of such data could be checked on the website. Thus, the value was re-determined on the basis of accepted transaction value of aluminium scrap of categories "Zorba", "Twitch", &nbs....
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....transaction value of similar goods" and provides that the value of imported goods shall be the transaction value of "similar goods" sold for export to India and imported at or about the same time as the goods being valued. The Deputy Commissioner, after nothing that rule 4 would not be applicable proceeded to re-determine the value under rule 5 holding that "the data for similar goods, with near identical/similar description for grade/type/specification were found in NIDB for the contemporary times against various Bills of Entry" was available. The Commissioner (Appeals) has not examined this contention regarding rule 5 of the Valuation Rules raised by the importer and, in fact, has observed that the Deputy Commissioner had resorted to rule 9 of the Valuation Rules for re-determination of the value. 85. In view of the fact that a very cryptic finding has been given by the Deputy Commissioner for applying 5 of the Valuation Rules for re-determination of the value and the fact that the Commissioner (Appeals) has not examined this issue at all, it would be appropriate to remit the matter to the Deputy Commissioner only in respect of three appeals bearing Cus....