2011 (3) TMI 1268 - AT - Customs

Application for stay - Demand - Differential duty - Undervaluation of imported goods - Rule 9 of the Customs Valuations (Determination Value of Imported Goods) Rules, 2007 - Held that - There are evidences to show undervaluation of the impugned goods as seen from the fact that the prices declared remained more or less static, irrespective of increase in value of zinc in international market and the fact that in the case of few Bills of Entries undervaluation is proved by acceptable collateral evidence and is accepted by the Appellant. Waste materials by its very nature cannot be of uniform standard and it is difficult to assess its value unless more information about the usable material and the form in which such usable material is present, in the waste are available. While LME prices can be good indicator to detect undervaluation it cannot be a measure for undervaluation of commodities like zinc ash/skimming and zinc dross without taking into account other relevant factors. The department is not having test reports to show the zinc contents in each of the consignments and the content of metallic zinc in each of the consignment which are crucially required for assessing the value of the goods. The suggestion to fix the value of zinc skimming equal to 65% of the value of zinc of prime quality quoted on LME is nearly absurd. Thus having noticed the above factors it can be concluded that there is a case for giving stay on all the demands made by the impugned order. There is also a need to remit this matter to the original authority for reconsideration of the matter on more acceptable principles.

Issues Involved:
1. Undervaluation of imported goods.
2. Difference in quantity noticed in one import consignment.

Issue-wise Detailed Analysis:

1. Undervaluation of Imported Goods:
The primary issue revolves around the undervaluation of zinc ash/skimmings and zinc dross imported by the Appellant. The customs department alleged that the declared values were significantly lower than the actual transaction values. The Appellant imported 99 consignments of zinc ash/skimmings and 14 consignments of zinc dross from February 2006 to February 2009 and paid customs duty based on these declared values. The customs department, after conducting investigations, including overseas inquiries, found evidence suggesting undervaluation but could only correlate this evidence with three specific Bills of Entries. The Appellant admitted to undervaluation for these three consignments but contested the valuation method applied to the rest.

The customs department used a formula to assess the value of the imported goods based on the London Metal Exchange (LME) prices for zinc. This formula equated the value of zinc ash/skimmings to 65% of the LME price for zinc and zinc dross to 90.18% of the LME price. The Tribunal found this method inconsistent with legal standards and common sense, as it did not account for the actual content of metallic zinc or the costs involved in processing the raw materials into usable products. The Tribunal noted that the Appellant did not manufacture prime quality zinc metal but produced zinc sulphate, which involves a simpler and less costly process.

The Tribunal also criticized the customs department for not having test reports to show the zinc content in each consignment, which is crucial for accurate valuation. The valuation method adopted by the customs department was deemed nearly absurd as it oversimplified the process and ignored several relevant factors.

2. Difference in Quantity Noticed in One Import Consignment:
The judgment briefly mentions a discrepancy in the quantity of one import consignment but does not provide detailed analysis or separate findings on this issue. The focus remains predominantly on the undervaluation aspect.

Conclusion:
The Tribunal granted a stay on all demands made by the impugned order and remitted the matter to the original authority for reconsideration based on more acceptable principles. The Tribunal suggested a new method for determining the value of the imported goods, which includes:

1. Basing the value of metallic zinc in the raw materials on the price at which the Appellant sells zinc ingots, with adjustments as per Rule 7(3)(b) of the Customs Valuation Rules.
2. Basing the value of other forms of zinc on the value of zinc sulphate sold by the Appellant, with similar adjustments.
3. Determining the percentage of metallic zinc and zinc in other forms from the Appellant's manufacturing records and applying these percentages uniformly for all consignments over a period.
4. Ensuring that any calculated value does not fall below the declared value at the time of import.

The Appellant agreed to furnish the necessary data for verification by the department and to pay the differential duty based on the new calculations. The Tribunal also directed the Adjudicating Authority to form a committee with expertise in chemical processes, costing, and Customs Valuation Rules to verify the data and ensure the accuracy of the valuation.

The impugned order was set aside, and the matter was remitted for fresh consideration as per the guidelines provided. The Appeals and Stay Applications were disposed of accordingly.

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