2010 (7) TMI 1141 - HC - Customs

Issues Involved:
1. Challenge to the orders dated 2nd August, 2001 and 4th December, 2001 passed by the Settlement Commission.
2. Determination of customs duty liability for 11 shipments without export declarations.
3. Applicability of Rule 5(3) of the Customs Valuation Rules, 1988.
4. Maintainability of the petition before the Settlement Commission.
5. Scope of High Court's power of judicial review over Settlement Commission's orders.

Issue-wise Detailed Analysis:

1. Challenge to the Orders of the Settlement Commission:
The petitioner challenged the orders dated 2nd August, 2001 and 4th December, 2001 passed by the Settlement Commission. The main contention was that the Settlement Commission settled the duty liability for 11 shipments at Rs. 21,35,879/- instead of the Rs. 6 lakhs disclosed by the petitioner, which was based on the lowest transaction value of identical goods as per Rule 5(3) of the Customs Valuation Rules.

2. Determination of Customs Duty Liability for 11 Shipments:
The petitioner imported electronic items during 1995-96. The Directorate of Revenue Intelligence (DRI) investigated under-invoicing and issued a show cause notice demanding Rs. 53,97,827/- for 31 shipments and Rs. 21,35,879/- for 11 shipments without export declarations. The petitioner admitted additional duty liability of Rs. 41,62,860/- for the 31 shipments, which was recalculated based on actual freight and insurance. The Settlement Commission accepted this recalculated amount with a minor correction, settling it at Rs. 42,22,107/-, which was paid by the petitioner.

For the 11 shipments, the petitioner initially did not accept any duty liability but later offered to pay Rs. 6 lakhs based on the lowest transaction value of identical goods. However, the Settlement Commission settled the duty at Rs. 21,35,879/- based on the decision in Orson Electronics Pvt. Ltd. v. Collector of Customs, 1996 (82) E.L.T. 499, and imposed a penalty of Rs. 1 lakh while granting immunity from interest and prosecution.

3. Applicability of Rule 5(3) of the Customs Valuation Rules, 1988:
The petitioner argued that as per Rule 5(3), the lowest transaction value of identical goods should be used to determine the value of imported goods. The petitioner cited various Tribunal decisions supporting this interpretation. The Settlement Commission, however, did not apply Rule 5(3) and instead relied on the decision in Orson Electronics, which the petitioner contended was inapplicable as it did not consider Rule 5(3).

4. Maintainability of the Petition Before the Settlement Commission:
The respondents argued that the petitioner's application was not maintainable as it did not disclose the duty liability for the 11 shipments initially. They contended that the petitioner, having opted for settlement, could not selectively accept parts of the Settlement Commission's order. The High Court, however, found this argument untenable, noting that the petitioner made a further disclosure of their additional duty liability for the 11 shipments during the settlement process.

5. Scope of High Court's Power of Judicial Review:
The respondents claimed that the High Court's power of judicial review was limited and that the Settlement Commission's orders were conclusive under Section 127J of the Customs Act. The High Court disagreed, citing the Supreme Court's decision in Jyotendrasinhji v. S.I. Tripathi, which allows judicial review of Settlement Commission's orders under Article 226 of the Constitution of India. The High Court found that the Settlement Commission did not follow Rule 5(3) of the Valuation Rules, making its decision arbitrary and perverse.

Conclusion:
The High Court set aside the orders dated 2nd August, 2001 and 4th December, 2001 to the extent that the Settlement Commission settled the duty liability for 11 shipments at Rs. 21,35,879/- instead of Rs. 6 lakhs. The Court held that the Settlement Commission must follow the provisions of Rule 5(3) of the Valuation Rules, which mandate adopting the lowest transaction value for identical goods. The petition was allowed, and the rule was made absolute with no order as to costs.

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