TaxTMI 
TaxTMI 
2026 (9) TMI 569
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....t in question. 2. Learned Advocate appearing on behalf of the Appellant contended that the Appellant M/s Maruti Fabric Impex, is engaged in the business of importing 'Polyester Knitted Fabrics of Mixed Colour, Weight and Length' from China. The Appellant imported a consignment of Polyester Knitted Fabrics and filed 26(Twenty-Six) Bills of Entry detailed in the impugned Orders-in-Appeal, declaring the transaction value at USD 1.35 per kg, in accordance with the commercial invoice issued by the foreign supplier. 3. Upon examination, the imported goods were found to be in conformity with the declarations made in the Bills of Entry. There was no allegation regarding the description, quantity or nature of the goods. 4. The learned Advocate appearing for the Appellant contended that the Appellant is a regular Importer of different kinds of Fabrics and have imported 26 consignments of fabrics from China during the period from 07.06.2019 to 07.08.2019 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 ....
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....en for applying Rule 5 of CVR, 2007, [CVR, 2007] several parameters like quantity in comparable commercial transactions, GSM, quality, time of placement of Order for import etc. has to be fulfilled. 7. The learned Advocate also submitted that similar letters of acceptance were submitted by the importers in the case of Hanuman Prasad & ors. and in the Appeals filed by them, the learned Commissioner (Appeals) set aside the enhancement of value merely on the basis of letter of acceptance. The Department filed Appeals against the Orders of the learned Commissioner (Appeal) wherein the Tribunal allowed the Appeals holding that once letter of acceptance has been submitted, the importers cannot question the assessment later on. The said importer filed Appeals before the Hon'ble High Court of Delhi titled as Niraj Silk Mills vs. Commissioner of Customs & Ors. - CUSAA 26/2022. The Hon'ble High Court of Delhi after analyzing the provisions of law and judgments, allowed the Appeals. The present Appeals are squarely covered by the judgment of the Hon'ble High Court. 8. The learned Advocate further submitted that the mandate of Rule 12(2) of CVR, 2007 is to intimate the importer in writin....
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....ive, there is no infirmity in the Orders passed by the Ld. Commissioner (Appeals). 11. The learned Advocate for the Appellant, in their written submissions have submitted that the issues in M/s S. S. Overseas & Ors. were entirely different in as much as it was the case of provisional assessment and non-issuance of finalized Bills of Entry. In any case, the Order of the Hon'ble Supreme Court was merely dismissal of the SLP which does not operate as merger with the Order of the High Court. In this regard, the Ld. Advocate relied upon the judgment of Hon'ble Supreme Court in the case of Kunhayammed & Ors. Vs. State of Kerala & Anr. (2000) 6 Supreme Court Cases 359. 12. Heard both the sides and perused the appeal records. 13. We have examined the impugned Orders-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 Orders-in-Appeal, it is further revealed that the Appellate Authority sought parawise comments from the Department and in response, the Departmen....
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....ds to the importer is mandatory, subterfuge to by-pass and circumvent the statutory mandate is unacceptable. Formation of belief and recording of reasons as to reasonable doubt and 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 Rules 4 to 9 after rejecting the transaction value as declared. 21. The mandate to record reasons at the second stage of enquiry is not expressly stipulated, albeit it has been read by us by implication in Rule 12. Being conscious that this mandate if applied to past cases would possibly lead to complications and difficulties, we would invoke the doctrine of prospective application with the direction that the past cases will be decided on a case to case basis, depending upon the factual matrix and considerations like whether the importer has asked for 'certain reasons', whether the reasons were not communicated, whether 'certain reasons' can be deciphered from the assessment/valuation Order, whether mis-description or false declaration was apparent, etc." 15. We notice that in the present case, all bills of entry are dated 07.06.2019 to 07.....
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....it becomes apparent that the statute speaks of the concession being with reference to the reassessment made under Section 17(4). It thus proceeds to provide that in a case where the importer confirms his acceptance of the reassessment in writing, the proper officer would stand relieved of the obligation of passing a speaking Order in respect of such reassessment. In all other cases and where the reassessment is not acceded to, the proper officer is obliged to pass a speaking Order. Thus, the waiver or concession is at best confined to the speaking Order which the proper officer is obliged to frame in affirmation of the provisional opinion that it may have formed under Section 17(4). 84. We find ourselves unable to construe Rule 12(2) as contemplating any concession or waiver at least in explicit terms. All that Rule 12(2) stipulates is that the proper officer would intimate to the importer the grounds for doubting the declared value at its request. It is in the aforesaid context that we would thus have to adjudge whether the CESTAT was correct in holding that the exchange of communications amounted to a waiver or abandonment not just of the right to question and assail the....
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....d by law. The Hon'ble Supreme Court in Dunlop India Ltd. & Madras Rubber Factory Ltd. v. Union of India, 1983 (13) E.L.T. 1566 (S.C.) has held that there is no estoppel in law, particularly in taxation matters, against a party seeking to assert a statutory right. 21. This principle has consistently been followed, including by the Tribunal in Hero Motors Ltd. v. CCE, Ghaziabad, 2014 (307) E.L.T. 138 (Tri-Del), holding that there are no estoppels in taxation matters and that consent given by an assessee cannot take away a right otherwise available under law; and by the Hon'ble Supreme Court in Shri Vallabh Glass Works Ltd. v. Union of India, 1984 (16) E.L.T. 171 (S.C.). 22. The reliance placed by the Department upon the judgment of the Hon'ble Allahabad High Court in M/s S.S. Overseas v. Union of India, Writ Tax No. 881 of 2022, decided 03.08.2022, which dismissed a batch of writ petitions filed by importers seeking a writ of mandamus directing issuance of a speaking order under Section 17(5) is irrelevant. 23. We find that M/s S.S. Overseas answers a narrow question, whether a writ of mandamus lies for issuance of a speaking order once acceptance has been given ....