2018 (3) TMI 202 - AT - Customs

Valuation - enhancement of value - Whether clearances of goods by paying customs duty on the higher enhanced assessable value precludes the assessee from challenging the same before the higher appellate forum? - Held that - in the case of Bayshore Glass Trading Pvt. Limited Vs. CC Kolkata 2002 (7) TMI 161 - CEGAT KOLKATA it was observed that rejection of appeal by Commissioner (Appeals) on the ground that assessee cleared the goods on payment of duty as assessed without protest cannot be appreciated. Filing of appeal by itself is a protest. Valuation - the same stand enhanced without first rejecting the transaction value - It has been held in number of decisions that enhancement of value cannot be done on the basis of DOV data etc. without first rejecting the transaction value or without adducing any evidence of contemporaneous imports. Held that - As there are contrary views and difference of opinion between the Members therefore the matter be placed before the Hon ble President to refer the matter to the third member to resolve the following issues - Whether in view of the mis-declaration of the goods impacting the rate of duty and the value of the goods the order of the Ld. Commissioner (Appeals) should be upheld and appellants appeal dismissed in Appeal No.C/60002/2016 C/60003/2016 and C/60006/2016 as held by Member (Technical). Matter referred to Third Member.

Summary

Issues:
1. Challenge of enhanced assessable value after clearance of goods by paying duty.
2. Rejection of declared transaction value by Revenue.
3. Validity of enhancement of value without rejecting transaction value.
4. Misdeclaration of goods impacting duty rate and value.

Analysis:
1. The judgment addresses the issue of whether an assessee can challenge the enhanced assessable value after clearing goods by paying duty. The Commissioner (Appeals) held that once duty is paid on the enhanced value and goods are cleared, challenging the value later is not permissible. However, the Tribunal disagreed, stating that payment under urgency does not preclude the right to challenge. Precedent cases were cited to support this view, emphasizing that filing an appeal itself constitutes a protest against the value determination.

2. The judgment examines the rejection of declared transaction value by the Revenue. It highlights that unless proven incorrect with tangible evidence, the transaction value should be accepted as the correct assessable value. The Revenue's failure to provide evidence of underhand dealings or inaccuracies in the declared value led the Tribunal to conclude that the transaction value should stand.

3. The validity of enhancing the value without rejecting the transaction value was scrutinized. The Tribunal emphasized that enhancement should be based on solid grounds and contemporaneous import data, not merely on doubts. Citing various tribunal decisions, it reiterated that the onus is on the Revenue to prove undervaluation with concrete evidence, which was lacking in the present case. The judgment stressed that suspicion alone is insufficient to reject the transaction value.

4. The misdeclaration of goods impacting duty rate and value was also addressed. The separate order by the Member (Technical) upheld the Commissioner (Appeals) decision in cases where misdeclaration affected duty rates and values. The misdeclaration accepted by the importer influenced the duty rates, justifying the higher duty and value imposed. Penalties and fines imposed due to misdeclaration were deemed appropriate, leading to the dismissal of appeals where misdeclaration was evident. The disagreement between the Members necessitated referral to the Hon'ble President for resolution.