TaxTMI 
TaxTMI 
2026 (5) TMI 1109
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.... Commissioner (Appeals) holding that the Appellant accepted the enhancement of the value in writing at the time of clearance of the consignment in question. 3. Briefly stated, the facts of the case are that the Appellant is engaged in the business of import and trading in various types of goods including Polyster Knitted Fabrics of Mix Lot (Rolls of assorted colour and weight) and have been importing the same from Hong Kong/China during the period from July to August 2019 at ICD Dadri against negotiated price. On arrival of goods, the Appellant filed the Bills of Entry for clearance and submitted all the desired documents. 4. The Appellant in the grounds of appeal has contended that the Appellant is a regular importer of different kind of fabrics and have imported consignments of fabrics from Hong Kong/China during the period July to August 2019 at ICD, Dadri against negotiated price. It has further been contended that the Appellant had self-assessed the duty correctly as per the respective invoices. However, no 'Out of Charge Orders' were passed. The Appellant made written requests to the Proper Officer to clear the consignments provisionally paying duty on the enhanced valu....
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.... transactions, GSM, quality, time of placement of Order for import etc. has to be fulfilled. 7. It is also submitted that the judgement of the Hon'ble Supreme Court in the case of Century Metal Recycling Pvt. Ltd. vs. UOI reported in 2019 (367) E.L.T. 3 (SC) the mandate of sub- Rule (2) of Rule 12 cannot be ignored or waived. Formation of opinion regarding reasonable doubt as to the truth or accuracy of the valuation and communication of the said ground to the importer is mandatory. The Hon'ble Supreme Court has deprecated the practice of by passing and circumventing the statutory mandate as un-acceptable. The Hon'ble Supreme Court has held that the formation of belief and recording of reasons as to reasonable doubt as communication of the reasons when required is the only way and manner in which the Proper Officer in terms of Rule 12 can proceed to make assessment under Rule 4 to 9 after rejecting the transaction value as declared. The above requirement has been made mandatory by the Hon'ble Supreme Court by invoking the doctrine of prospective application. It was submitted that in the present case, all Bills of entry are dated post 17.05.2019 and therefore, the proper officer ....
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....appeal records. 11. We have examined the impugned Order-in-Appeal vide which the Appeals filed by the Appellant were rejected holding that the Appellant has accepted the enhancement of value in writing and therefore there was no question of issuance of Speaking Order under Section 17(5) of the Customs Act, 1962. From the impugned Order-in-Appeal, it is further revealed that the Appellate Authority sought parawise comments from the Department and in response, the Department filed parawise comments and the acceptance letters regarding enhancement of assessable value by the Appellant. However, we find that none of the letters written by the Appellant seeking clearance of the consignments either provisionally or finally on payment of duty on enhanced assessable value under protest have been referred too. We have seen the letters written by the Appellant requesting the clearance of consignments either provisionally or finally on payment of duty on enhanced value under protest which clearly proved that it was not the case of acceptance of enhancement of value simplicitor. 12. We find that the Order of the Commissioner (Appeals) merely proceeded on the ground that the Appellant had ....
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....hether the Department can enhance the value relying on NIDB and on the basis of the acceptance letter and once there is acceptance letters, the importer cannot contest the same also came up for consideration before the Hon'ble High Court of Delhi in the case of Niraj Silk Mills vs. Commissioner of Customs (ICD) Patparganj passed in CUSAA 26/2022 and the Hon'ble High Court vide its judgment dated 27.11.2024 has held that the right to question the correctness of the decision of the proper officer, be it with respect to the formation of opinion or even on merits, is one which is protected by statute. The Hon'ble High Court formulated the question of law as under:- "Whether the Tribunal misdirected itself in holding that the appellants in the above-mentioned matter could not question the enhancement made concerning the valuation of the imported goods, once the appellants had given up their right to seek issuance of a show cause notice and/or speaking Order under Section 17 of the Customs Act, 1962?" The Hon'ble High Court vide its judgment held as under:- "83. That then takes us to the concession which the importer could tender and which would require us to identif....
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....arious judgments of the Tribunal as well as of the Hon'ble Supreme Court, has decided the issue in favour of the importer/assessee. Here, it is pertinent to reproduce the relevant paras of the judgment of the Hon'ble Delhi High Court passed on 27.11.2024, which are reproduced herein below:- "58. Before we proceed to analyse Section 17 of the Act and its application to the appeals before us, it would be pertinent to preface the discussion by acknowledging the statutory position as it exists. An entity intending to import goods is firstly required to self-assess the duty which would be leviable. This obliges the importer to comply with the prescriptions set out in Section 46 of the Act. As that provision stands in its present avatar, the importer of any goods is required to electronically present on the customs automated system, the BoE for the consideration of the proper officer. The BoE is to include all particulars required in terms of the provisions made in the Act and corresponding rules. In addition to the presentation of a BoE, the importer is also statutorily obliged to submit a declaration as to the truthfulness of the contents of such BoE and in support thereof pro....
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....municated to the importer were aspects on which due emphasis was laid by the Supreme Court in Century Metal Recycling as is evident from a reading of para 25 of the report. In fact, the Supreme Court pertinently observed that the aforenoted mandate of Rule 12(2) cannot be "ignored or waived". The statutory obligations flowing from Rule 12 in this regard were reemphasized by the Supreme Court in that decision when their Lordships observed that the same would constitute the only manner in which the proper officer could proceed to make an assessment under Rules 4 to 9. The interplay between Sections 14 and 17, and the 2007 Rules was lucidly explained by the Supreme Court in Century Metal Recycling and where the Supreme Court was faced with a somewhat similar situation of an appellant who alleged that they had been coerced and intimidated into submitting a letter of consent conceding to the assessment and valuation exercise undertaken by the customs authorities compelled by the delay being caused in the clearance of imported articles and the continued levy of demurrage, warehousing charges and other liabilities. After noticing the language in which Rule 12 stood couched, the Supreme Co....
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....uestion the same. ............ ............. 97. By virtue of Section 17(5) of the Act, the proper officer stands relieved of the obligation to pass a speaking order only in cases where the importer confirms his acceptance of the reassessment in writing. However, and as was noted in the preceding parts of this decision, the different Benches of the CESTAT have consistently taken the position that letters of consent of the like submitted by the appellants in this batch cannot be viewed as a complete or abject surrender of the right to assail or question a reassessment. However, the host of past precedents rendered on this aspect have come to be overlooked and ignored by the CESTAT which has merely proceeded to toe the line taken in the Advanced Scan Support and Vikas Spinners. We have already taken note of the distinguishing features which inform the aforementioned two decisions. 98. Therefore, the proper officer could not be said to have been relieved of its obligation to pass a speaking order in terms of Section 17(5). The process of rejecting the declared value and reassessing the transaction value is statutorily required to be preceded by the ....