2010 (12) TMI 1048 - HC - Customs

Whether assessment of duty under Section 17(2) read with the rules or provisional assessment under Section 18 is permissible solely on the basis of norms fixed by the Commissioner of Customs, Nhava Sheva ignoring genuine transaction value or the provisions of the rules Held that - norms cannot be mechanically applied, irrespective of genuineness of transaction value or value as may be arrived at as per statutory requirements. Normally, it is not for this Court to lay down the valuation in individual cases or to interfere with an order of assessment or appellate order on the issue of assessment of value but when valuation has not been fixed as per statutory provisions, petition allowed, matter remanded to the Assessing Officer

Issues Involved
1. Validity of the valuation of imported goods.
2. Applicability of the norms fixed by the Commissioner of Customs, Nhava Sheva.
3. Compliance with the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007.
4. Requirement for a speaking order under Section 17(5) of the Customs Act, 1962.

Detailed Analysis

1. Validity of the Valuation of Imported Goods
The petitioner challenged the order dated 11-1-2010, passed by the Commissioner of Customs (Appeals), Chandigarh, which upheld the valuation of imported goods fixed by the Assistant Commissioner of Customs. The valuation was based on norms set by the Commissioner of Customs, Nhava Sheva. The petitioner argued that the valuation was arbitrary and ignored a report recommending a lower base price.

2. Applicability of the Norms Fixed by the Commissioner of Customs, Nhava Sheva
The Commissioner of Customs, Nhava Sheva, had fixed the price of Zinc skimming/Zinc ash at 40% of the London Metal Exchange (LME) value if the metallic content was nil. This was contrary to a report by the Deputy Commissioner of Customs, Ludhiana, which recommended a base price of 25% of the LME. The petitioner contended that the norms set by the Commissioner of Customs, Nhava Sheva, were arbitrary and should not have been mechanically applied.

3. Compliance with the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007
The petitioner argued that under the Customs Valuation Rules, 2007, the valuation should be based either on the transaction value or the lowest value in identical transactions. The rules also require that the valuation be reasonable. The petitioner claimed that the Assistant Commissioner of Customs did not consider the transaction value of identical goods and mechanically applied the norms set by the Commissioner of Customs, Nhava Sheva.

4. Requirement for a Speaking Order under Section 17(5) of the Customs Act, 1962
The petitioner had previously filed CWP No. 16037 of 2008, seeking a regular assessment by a speaking order as required under Section 17(5) and Section 18 of the Customs Act, 1962. The court had directed the Commissioner of Customs, Nhava Sheva, to finalize the matter expeditiously. However, the petitioner argued that the subsequent assessments did not comply with these statutory requirements.

Judgment Summary
The court examined whether the assessment of duty under Section 17(2) read with the rules or provisional assessment under Section 18 could be based solely on the norms fixed by the Commissioner of Customs, Nhava Sheva, ignoring genuine transaction values or statutory provisions.

The court held that norms set by the Commissioner of Customs, Nhava Sheva, could not be mechanically applied without considering the genuineness of the transaction value or statutory requirements. The court emphasized that it is not its role to determine valuation in individual cases but to ensure compliance with statutory provisions.

The court quashed the impugned orders and remanded the matter to the Assessing Officer to pass a fresh order in accordance with the law, ensuring that the valuation is done as per statutory provisions and not merely based on the norms set by the Commissioner of Customs, Nhava Sheva.

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