2019 (8) TMI 1676 - AT - Customs

Valuation of imported goods - enhancement of declared value - bar under the provisions of Section 17 of Customs Act from filing an appeal against the enhancement - HELD THAT - The Commissioner (Appeals) is right in holding that the there is no bar in filing appeal against the assessment order even in case were the enhanced value has been accepted by the importer. Further it is also found that in this case the appellant has clearly stated that they are not accepting the enhanced value as per NIDB price but in order to avoid demurrage and detention charge and also blocking of the capital, with a specific request to issue the assessment order under Section 17(5) of the Customs Act. This averment indicates that the respondent had the clear intention to file appeal against the order of enhancement of the price which was agreed by him. Therefore, it cannot be held that having agreed to the proposed enhancement, the respondent is barred from filing the appeal before the Commissioner (Appeals). Regarding the claim of Revenue that the Commissioner (Appeals) has taken additional evidence from the respondent contrary to the provisions of Rule 5 of the Customs Appeal Rules, 1982. However, the Commissioner (Appeals) has not taken any new evidence but only entertained some new case laws in support of their case, which cannot be considered as production of additional evidence on part of the respondent. The right to appeal is a statutory right under Section 128 of the Customs Act, 1962 and cannot be curtailed by relying on the case of M/S. ADVANCED SCAN SUPPORT TECHNOLOGIES VERSUS C.C., JODHPUR 2015 (11) TMI 31 - CESTAT NEW DELHI in the case wherein there was no contest by the appellant. It is settled law that the that the value cannot be enhanced on the basis of NIDB price alone which has rightly been relied upon by the learned Commissioner (Appeals). The Department has not produced any evidence of contemporaneous import but for relying on the NIDB price. NIDB price itself cannot be sufficient to reject the transaction value. But the Department was required to give the evidence of higher contemporaneous value based on the cogent evidence by supply of comparable invoice in terms of the Customs Valuation Rules which has obviously been not followed by the Assessing officer. Appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Enhancement of the declared value of imported goods.
2. Rejection of transaction value under Rule 12 of Customs Valuation (Determination of value of Imported Goods) Rules, 2007.
3. Reliance on National Import Database (NIDB) for value determination.
4. Right to appeal against assessment orders.
5. Acceptance of enhanced value under duress.
6. Admission of additional evidence during the appeal.

Detailed Analysis:

1. Enhancement of the declared value of imported goods:
The respondent imported TFS defective coils, declaring the price as USD 250 PMT under Customs Tariff Heading No. 72105000. The appraising group did not accept this price, considering it lower than the comparative price in the National Import Database (NIDB). Consequently, the declared value was enhanced to USD 515 PMT by the Deputy Commissioner, Appraising Group, through an order dated 21.6.2017. The Commissioner (Appeals) later set aside this order, directing the assessment of the Bill of Entry at the declared price.

2. Rejection of transaction value under Rule 12 of Customs Valuation (Determination of value of Imported Goods) Rules, 2007:
The Revenue argued that the declared value was rejected under Rule 12 of the Customs Valuation Rules, 2007, and re-determined under Rule 5 based on contemporaneous imports and similar goods in the NIDB. The Commissioner (Appeals) found that the enhancement was arbitrary and that the respondent did not consent to it, despite the Revenue's claim to the contrary.

3. Reliance on National Import Database (NIDB) for value determination:
The Revenue's reliance on NIDB data for enhancing the value was contested. The Commissioner (Appeals) and subsequent Tribunal findings emphasized that NIDB data alone cannot justify the rejection of transaction value. The Tribunal cited various precedents, including Commissioner of Customs New Delhi vs. D.M. International, which held that enhancement of value must be supported by evidence beyond NIDB data, considering quality, quantity, and country of origin.

4. Right to appeal against assessment orders:
The Commissioner (Appeals) ruled that Section 17 of the Customs Act does not preclude an importer from appealing against an assessment order, even if the enhanced value was accepted under duress. This was supported by the Tribunal, which noted that the respondent's acceptance of the enhanced value was to avoid demurrage and detention charges, not a waiver of the right to appeal.

5. Acceptance of enhanced value under duress:
The respondent's acceptance of the enhanced value was argued to be under duress due to the potential for demurrage and detention charges. The Tribunal agreed with the Commissioner (Appeals) that such acceptance does not bar the respondent from challenging the enhancement, as it was done to mitigate immediate financial losses.

6. Admission of additional evidence during the appeal:
The Revenue contended that the Commissioner (Appeals) improperly admitted new evidence from the respondent. However, the Tribunal found that the Commissioner (Appeals) only considered new case laws, not additional factual evidence, which is permissible. The right to appeal under Section 128 of the Customs Act, 1962, was upheld.

Conclusion:
The Tribunal upheld the Commissioner (Appeals)'s decision to set aside the enhancement of the declared value, emphasizing that NIDB data alone is insufficient for such determinations. The respondent's acceptance of the enhanced value under duress did not preclude the right to appeal. The appeal filed by the Revenue was rejected, and the stay application was disposed of accordingly.