2000 (7) TMI 966 - HC - Customs

Summary

Issues Involved:

1. Illegal assessment of the value of imported metallurgical coke.
2. Provisional assessment and anti-dumping duty imposition.
3. Proper officer's duty and compliance with the Customs Act.
4. Comparison of imported goods' value and quality.
5. Burden of proof for under-valuation.

Detailed Analysis:

1. Illegal Assessment of the Value of Imported Metallurgical Coke:

The petitioners, including a shareholder of M/s. Hindustan Coal Movers Private Limited, filed a petition under Article 226 of the Constitution of India, challenging the illegal assessment of the consignment of metallurgical coke imported by the company. The Revenue had valued the coke at US$ 65 per Metric Tonne, while the petitioners declared it at US$ 92 per Metric Tonne. The petitioners furnished a bank guarantee to clear the first consignment and faced similar issues with the second consignment, leading to the present petition.

2. Provisional Assessment and Anti-Dumping Duty Imposition:

The court noted that during the hearing, an ex-parte order was modified based on a decision by the Central Excise & Gold Appellate Tribunal (CEGAT), which stated that anti-dumping duty would be levied as per CEGAT's decision. The court directed the respondent authorities to assess the Bills of Entry based on the duty imposed by notification under Rule 18 of the Customs Tariff (Anti-dumping Duty on Dumped Articles) Rules, 1995. The provisional assessment for anti-dumping duty was to be made at US$ 65 per Metric Tonne without reference to the declared customs duty valuation.

3. Proper Officer's Duty and Compliance with the Customs Act:

The court emphasized the role of the "Proper Officer" as defined under Section 2(34) of the Customs Act, 1962, and the assessment of duty under Section 17. The proper officer is required to examine and test the goods without undue delay and may call upon the importer to produce relevant documents. In this case, Section 17 was not followed, and the proper officer did not seek necessary documents or conduct tests for assessment.

4. Comparison of Imported Goods' Value and Quality:

The court observed that the Revenue had not provided evidence regarding the source, nature, and quality of the coke imported by Rashtriya Ispat Nigam Limited compared to the petitioner's imports. The value of coke depends on its chemical constituents, and without expert comparison, the Revenue's valuation at US$ 65 per Metric Tonne could not be justified. The Assistant Commissioner of Customs had earlier indicated that the value of coke varied between US$ 87.5 to US$ 93 per Metric Tonne, and other importers were allowed to clear goods at this value without anti-dumping duty.

5. Burden of Proof for Under-Valuation:

The court referred to the Supreme Court's decision in Mirah Exports Pvt. Ltd. v. Collector of Customs, emphasizing that the burden of proving under-valuation lies with the Revenue. The Revenue must provide evidence to show that the apparent tenor of agreements does not reflect the true sale price. In this case, the Revenue failed to produce any material evidence to support the lower valuation of US$ 65 per Metric Tonne.

Conclusion:

The court directed the Union of India to release the goods upon taking a bond from the petitioners and required the petitioners to file an undertaking. The Revenue officers were instructed to complete the assessment within 15 days, independently and without being influenced by the court's order. The petition was allowed, and the rule was made absolute.