TaxTMI 
TaxTMI 
2026 (6) TMI 404
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....rprises Limited [AEL] C/86117/2024 Adani Renewable Energy LLP [AREL] C/86118/2024 Adani Hazira Port Private Limited [AHPPL] C/86119/2024 Adani Port and Special Economic Zone Limited [APSEZL] C/86120/2024 Adani International Container Terminal (P) Limited [AICTPL] C/86121/2024 Adani Vizag Coal Terminal Private Limited [AVCTPL] 3. It transpires from the records that a common investigation by the Directorate of Revenue Intelligence [DRI] led to issuance of three separate show cause notices. The details of the show cause notices and the parties are as follows: Sr. No. Show cause notice dated Party 1. 15.05.2014 (first show cause notice) M/s. Adani Power Maharahtra Ltd. (APML) and M/s Adani Power Rajasthan Ltd. (APRL) 2. 15.05.2014 (second show cause notice) M/s. Maharashtra Eastern Grid Power Transmission Company Ltd. (MEGPTCL) 3. 31.08.2016 (third show cause notice involved in these appeals) AEL, AREL, AHPPL, APSEZL, AICTPL and AVCTPL 4. It also transpires from the records that the first show cause notice dated 15.05.2014 was adjudicated by the Additional Director General, DRI (Adjudication) [the Additional Direct....
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....e at the appropriate stage. 9. Shri Shambhoo Nath, learned special counsel appearing for the department, however, submitted that the Principal Commissioner committed an error in discharging the show cause notice against all the respondents in this appeal. 10. The submissions advanced by the learned special counsel for the department and the learned senior counsel for the respondents have been considered. 11. In order to appreciate the contention that have been advanced by learned special counsel for the department and the learned senior counsel appearing for the respondents, it will be appropriate to first refer in brief to the facts of the six appeals. Facts of the Six Appeals Customs Appeal No's. 86116 of 2024 and 86117 of 2024 12. Pursuant to the Solar Power Policy issued by the Government of Gujarat in 2009, AREL undertook the setting up of a 40 MWP Solar Photovoltaic Power Project at Bitta, Gujarat. It is stated that to ensure transparency, AREL issued a global Notice Inviting Tender on 06.10.2010, adhering to International Competitive Bidding guidelines. 13. Following pre-bid discussions, final commercial offers were received from following five pre-quali....
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....uay Cranes and Rubber Tyred Gantry Cranes as also tugs for the smooth execution of its expanding port operations. To procure this equipment, AHPPL followed a competitive bidding process, in which only foreign bidders participated since no indigenous manufacturer could meet the required specifications, capacity, scope of supply, and extended warranty terms. With a view to ensure transparency, AHPPL invited tenders for design, supply, delivery and transportation of the three variations of cranes and four tugs. The Notice Inviting Tender was issued on 28.10.2010. 19. The final commercial offers were received from two pre-qualified global bidders: Sr. No. Bidder Particulars Initial Bid (Total Project Cost in USD) Final Bid (Total Project Cost in USD) 1. M/s Roberts & Schaefer 177,533,936 165,919,566 2. EIF 173,701,563 157, 138,788 20. EIF emerged as the lowest bidder with a project cost of USD 15.71 crores. Consequently, AHPPL awarded the contract to EIF on an EPC basis as the price quoted was the lowest and the scope of supply including offer of extended guarantee/warranty and delivery schedule was found to be the best. Accordingly, following ....
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....iod; (o) Apart from supply of the said cranes, the same had to be handed over in a fully erected condition by June, 2012 for Rail Mounted Quay Cranes and Rubber Tyred Gantry Cranes; September, 2012 for Mobile Harbor Cranes and May, 2013 for the tugs. Also, if required, trained expatriate supervision engineers, having sufficient knowledge and experience were to be made available at the time of handing over; (p) EIF was also to ensure the said goods at their full replacement value during manufacturing as a back-to back-arrangement; (q) EIF was solely responsible for delivery in accordance with the requirements of the contract and expediting all matters to the contract; and (r) In the event, any inspection or test indicates that the said goods fail to meet the requirements of the said Contract, then in that case, EIF to take immediate steps to rectify the failure at its own cost and expense. 22. The imports for the project were executed under 9 Bills of Entry and the assessments were finalized in 2013. Customs Appeal No's. 86119 of 2024 and 86120 of 2024 23. APSEZL is a private multi-port operator. Port Terminal Rights at Mundra were grante....
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.... dated 30.05.2008. 31. The imports for the project were executed under 8 Bills of Entry, and the assessments were finalized in 2012. Customs Appeal No. 86121 of 2024 32. AVCTPL was engaged in the development of a bulk cargo port facility for handling steam coal in the inner harbour of Vizag port on "design, build, finance, operate and transfer" [DBFOT Basis] basis under the Concession Agreement dated 01.08.2011, effective for the period of 30 years from the date of award of concession on 08.08.2012. 33. AVCTPL required two Rail Mounted Mobile Harbor Cranes for execution of port operations. To procure this equipment, AVCTPL followed a competitive bidding process, in which only foreign bidders participated since no indigenous manufacturer could meet the required specifications, capacity, scope of supply, and extended warranty terms. 34. With a view to ensure transparency and maintain good corporate governance, AVCTPL invited tenders for design, supply, delivery and transportation of the two rail mounted harbour cranes. The Notice Inviting Tender was issued on 11.12.2012. 35. Following pre-bid discussions, final commercial offers were received from two pre-qualified ....
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....how cause notice were same as they emanated from the same investigation, learned senior counsel for the respondents referred to the relevant paragraphs of the show cause notice dated 31.08.2016 as also the relevant paragraphs of the order. These paragraphs are summarized below: Document Name Internal paragraph Relevant Extract Show cause notice Paragraph number 2.0 "On the basis of the said intelligence, enquiries were initiated into goods invoiced by M/s Electrogen lnfra FZE, UAE (for short - "EIF") which were imported and cleared in the name of various Adani Group companies engaged in different business sectors. Enquiries revealed that several Adani Group entities were importing goods invoiced by EIF." Paragraph number 2.1 "Pursuant to investigation two Show Cause Notices have been issued to three entities of Adani Group earlier on account of alleged over-valuation as below:- Table-1 Details of SCNs earlier issued to Adani Group entities Party SCN No./date Declared Value (CIF) Value proposed to be determined (CIF) Difference (Quantum of over-valuation) M/s Adani Power Maharashtra Ltd., M/s. Adani Power Rajasthan Ltd. & Others F.N....
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....se Notices had been issued: i. SCN no. DRI/MZU/CI-224/(APML/APRL)/2013 dt:15.05.2014 ii. SCN no. DRI/MZU/CI-224/ (PMC)/2013 dt: 15.05.2014 iii. SCN no. DRI/MZU/ CI-224/ (Others)/2013 dt: 31.08.2016" Paragraph number 5.7.3 "The evident commonality in the investigation process is noticeable through uniform methodology employed in data and evidence collection. It is apparent that the underlying facts in these cases reveal a notable similarity, as emphasised by the overall similarity in the 'summaries' presented in the respective show cause notices as discussed above." 41. The aforesaid findings recorded by the Principal Commissioner have not been disputed by the department in the six appeals. 42. Even otherwise, the show cause notice dated 31.08.2016 records that the earlier two show cause notices, each dated 15.05.2014, had been issued on the basis of a common investigation and same set of documents. In such circumstances, when the present proceedings arise from the common investigation and rests on the very set of documents, the consequence would be that the six appeals should meet the same fate as the earlier two appeals filed by the d....
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....TCL appeals filed by the department, the Hon'ble Supreme Court has held that the matter has been concluded by the findings of fact recorded by the lower authority and the impugned order does not require any interference. Accordingly, from the said order dated 27.023.2023 it is apparent that the points raised by the department had not been examined on merit by the Hon'ble Supreme Court." 47. The department filed Miscellaneous Application No's. 85690-85695 of 2026 with a prayer that the department may be permitted to withdraw the said ground. The relevant paragraphs 6, 7 and 8 of the application are reproduced below: "6. In this regard, it is most respectfully submitted that the inclusion of Ground No. 7.1(b) in the Grounds of Appeal was inadvertent and erroneous, and does not accurately reflect the correct or intended position of the Appellant. 7. The Appellant, therefore, does not wish to press or rely upon the said Ground No. 7.1(b), and seeks permission of this Hon'ble Tribunal to withdraw/suitably amend the same in order to present the correct legal position and avoid any unintended misinterpretation. 8. The Appellant submits that all other grounds ....
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....l Competitive Bidding process, and it was awarded to the lowest bidder, EIF. The decision-making process for arriving at the price was found to be transparent and independent. Despite acknowledging a relationship between the noticees and EIF, it is concluded that this relationship did not influence the pricing in these transactions. Therefore, I find that even though I have found that the importers/noticees and EIF were related, the requirement of relationship influencing the price was not satisfied." (emphasis supplied) 52. After reproducing the findings recorded by the Tribunal in Customs Appeal No. 87758 of 2017 and Customs Appeal No. 85746 of 2018 that had earlier been decided by the Tribunal, the Principal Commissioner recorded a finding that the declared transaction value was required to be accepted under rule 3 of the 2007 Valuation Rules read with section 14 of the Customs Act and the relevant finding is as follows: "5.31 The Hon'ble CESTAT, Mumbai in above cases has held that in order to accept the invoice value of OEMs under Rule 11 it was necessary to compare the contracts between OEMs, the supplier and the importer. I have already held that the contracts ....
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....entical in all such cases. The cases of M/s. Adani Power Maharashtra Ltd. and M/s. Maharashtra Eastern Grid Power Transmission Company Ltd. have already been decided by Hon'ble CESTAT Mumbai and have attained finality as discussed previously and therefore, the findings therein are squarely applicable in the present case. The noticees have challenged the evidentiary value of documents received from overseas bankers in absence certificate under 138 C of Customs Act, 1962. Since present case is exactly identical to above mentioned decided case, I find that this issue stands already decided in favour of noticees. *****" (emphasis supplied) 53. The Principal Commissioner, therefore, held that there was no reason to reject the declared transaction value and the finding is as follows: "5.33 The CESTAT, Mumbai has held the evidence received by DRI from overseas bankers as inadmissible in absence of certificate under Section 138 (4) of Customs Act, 1962. I find that in the present case also there is no certificate under 138 C (4) of Customs Act available on record and therefore, the evidences relied upon by DRI in support of alleged over invoicing cannot be sustained on this ....