TaxTMI 
TaxTMI 
2026 (8) TMI 1081
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....e Assessing officer accordingly finalized assessment of B/Es by enhancing assessable value in the respective Bills of Entry and determined the duty payable by the appellant who paid the same and cleared the goods. 1.1 The appellant, feeling aggrieved, filed appeal before the Commissioner (Appeals) Ahmedabad, Customs, who vide Order-in-Appeal dated 30.11.2021, remanded the matter to the Adjudicating Authority to examine the available facts, documents, submissions and issue speaking order under Section 17(5) of the Customs Act, 1962 after following the principles of natural justice and adhering to the legal provisions. In remand proceedings, the Adjudicating Authority vide Order-in-Original dated 07.12.2022 upheld the assessment done by the assessing officer and, re-determined the value of imported goods covered under above Bills of Entry in terms of the Section 14 (1) of the Customs Act, 1962 read with Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. 1.2 Being aggrieved with the above Order-in-Original dated 07.12.2022, appellant filed appeal before the Commissioner (Appeals) who vide impugned order upheld the Order-in-Original and rejected their appea....
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....ustoms Act, 1962 is the basis of assessment of duty which provides that the value of imported goods shall be the transaction value of the goods, subject to the conditions mentioned therein. It is a well settled law that unless there is additional consideration involved or any of the exceptions as specified in Rule 3 (2) of the Customs Valuation Rules, 2007 is attracted, the transaction value cannot be rejected. No such allegation or finding is forthcoming in reassessment proceedings. 2.4 The learned Counsel for the appellant also submitted that redetermination of value by the Proper Officer is in violation of the principles of natural justice. No such order is lawful if passed without providing copies of contemporaneous import and without quoting the Rules of CVR 2007 under which the value has been re-determined. The S.O. number 02/2021 dated 05.07.2021 issued by the Principal Commissioner of Customs is applicable on this issue. 2.5 He also submitted that there are no such provisions under the Customs Act, 1962 or CVR 2007 that the value accepted by the importer shall be the value for the purpose of assessment of duty. The Assessing Officer was adopting illegal procedure for ....
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....at following principles of law have been laid down:- (i) FOB value is the transaction value, i.e. the price paid or to be paid for the goods as decided between the exporter and the overseas buyers. (ii) No stranger to the contract including any Customs Officer has any right to interfere with the FOB value as the Customs Act does not empower any officer to modify the FOB value. (iii) Even if the transaction value is rejected under the valuation rules and the assessable value is determined following some other method, such determination of assessable value does not change the FOB value. (iv) The power to notify drawback rate is vested with Central Government and if the rates of drawback are as a percentage of FOB value, drawback should be paid accordingly and no Customs Officer has the power to ignore the FOB value and determine drawback based on any other value determined by him. (v) The entire investigation and subsequent SCN and the adjudication proceedings were on wrong impression that the Customs Officers have right to modify the FOB value or that drawback, MEIS and ROSL which as per the drawback schedule and the FTP are a percentage of FOB. Relying upon the above....
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....ustify the value declared by them. Instead of justifying the declared value, appellant agreed to the observation of the Assessing Officer and consented for enhancing the value of the goods as per LME prices after due adjustments. In view of their consent, Assessing Officer enhanced the assessable value in respective Bills of Entry against which, they filed appeal before the Commissioner (Appeals) who remanded the matter to the Adjudicating Authority with direction to examine available facts, documents, submissions and issue order under Section 17 (5) of the Customs Act, after following the Principles of Natural Justice and adhering to the legal provisions. The Adjudicating Authority vide Order-in-Original dated 07.12.22 re-determined the value of the imported goods covered under the Bills of Entry and thus, upheld the assessment done by the Assessing Officer. Their Appeal against this OIO, filed before the learned Commissioner (Appeals) was also rejected. 4.2 Section 14 (1) of Customs Act, 1962, provides that the value of imported goods shall be the transaction value of such goods i.e. price actually paid or payable for the goods when sold for exports to India for delivery at th....
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....parable quantities in a comparable commercial transaction were assessed. (emphasis supplied) 4.4 The provisions relating to 'assessment of duty' under Section 17 of the Customs Act are reproduced below:- "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 th....
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.... at by the learned Commissioner (Appeals) is not sustainable in view of following decisions - (a) In Commissioner of Customs, Delhi vs. Maruti Fabric Impex reported at 2016 (343) ELT 963 (Tri.-Delhi), it was observed that acceptance of enhanced value by the assesse does not curtail his right to file an appeal against such assessment on enhanced value. (b) In case of M/s. Sunland Alloys vs. CC Ahmedabad (final order no. A/11030-11080/2022 in Customs Appeal No. 12505/2019) this Tribunal held as follows:- "5. As regard the issue on which the Learned Commissioner (Appeals) rejected the appeal that once the appellant have accepted the enhancement of the value at the time of reassessment of the Bill of Entry they are not falling under the category of aggrieved person in terms of Section 128 (1) of Customs Act, 1962, we find that on this direct issue, the Hon'ble Supreme Court in the case of CENTURY METAL RECYCLING PVT. LTD. vs UNION OF INDIA- 2019 (367) E.L.T. 3 (S.C.), considering the fact that the appellant had given the consent letter before the assessing authority, the enhancement of the value was rejected. 6. As per the above Apex Court judgment even thou....
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....nt evidence is required and mere reference to NIDB data is not sufficient. It is held by various courts that NIDB data cannot be made the sole basis for enhancement of the value. 4.7 We find that in the first round of litigation, Commissioner (Appeals) vide Order-in-Appeal No. AHD-CUSTM-000-APP-1074-1416-21-22 dated 30.11.2021 had remanded the matter to the Adjudicating Authority to examine the available facts, documents, submissions and issue speaking order under Section 17 (5) of the Customs Act, 1962, after following the principles of natural justice and adhering to the legal provisions. The learned Adjudicating Authority in para 9 of the Order-in-Original dated 07.12.2022, has recorded that "The importer have advanced plea to the effect that neither evidence of any amount paid over and above the invoice value nor any documents such as invoice or Bills of Entry to support the enhanced value, had been brought on record and as such, the transaction value could not be rejected. In the instant case, the importer have themselves accepted and requested for enhancement of value, as already discussed hereinabove. In such cases, where the importer have expressed their consent to the e....
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....Department to establish the declared value to be correct is discharged if the enhanced value is voluntarily accepted." 4.9 We are of the view that the conclusion arrived at by the learned Adjudicating Authority is against the established legal position as held by Hon'ble Delhi High Court in Niraj Silk Milks vs. CC - 2024 (11) TMI 1361. Hon'ble Court considered the Tribunal's decision in M/s. Hanuman Prasad and Sons case (supra) and thereafter, framed the following question of law:- "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 or speaking order under Section 17 of the Customs Act, 1962?" 4.10 Hon'ble Delhi High Court held that proper officer must form and record justiciable reasons in support of a 'reasonable doubt' under Rule 12 before rejecting declared transaction value, and those reasons (when requested) must be communicated to the importer; the Department carries the onus to demonstrate cogent grounds for rejecting the declared v....
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....expression "Where it is found on verification, examination or testing". It is this verification exercise which would necessarily entail an importer being provided a reasonable opportunity to be heard before a final decision is taken. It is perhaps in the aforesaid light that Century Metal Recycling observed that neither opportunity of questioning an opinion with respect to re-assessment as formed nor an opportunity of hearing can be waived. In fact, it held that the aforesaid procedure would clearly be mandatory. Hon'ble Delhi High Court has further held that the assertion of abandonment and waiver of a right is clearly misconceived. The tone and tenor of the communications which were addressed by the appellants cannot possibly be interpreted or construed as amounting to a conscious waiver of right to question the re-assessment further. Not only do those documents appear to be the submissions of a "without prejudice" request tendered in order to facilitate expeditious clearance of goods, the same cannot possibly be viewed or interpreted as amounting to an abandonment of the right to institute an appeal itself. Hon'ble Court answered the lead question as under. It set aside the T....