2023 (5) TMI 51 - AT - Customs

Valuation of vessel - rejection of declared value - price variation clause - finalization of provisional assessment under section 18(1) of the Customs Act, 1962 - HELD THAT - The original MoA mentioned LDT of 4999.20 MT and the MoA entered between the appellant and Ace Exim Private Limited contains net LDT as 4485.20MT - It is quite apparent that so long as the transaction value is real and there are reasons for any change in the transaction value and the MoA is genuine then the price declared therein should be accepted. The Revenue has relied on the decision of the Tribunal in the case of Great Eastern Shipping Co. Ltd. 2014 (5) TMI 164 - CESTAT MUMBAI . It is seen that the said decision relates to the relevant date for determination of rate of duty and tariff valuation. In the said case, it has been held that the rate of duty and tariff valuation applicable on date of entry inward would apply. It is noticed that in the instant case, there is no tariff valuation involved but it is valuation on the basis of transaction value and thus in the said decision it is not applicable to the facts of this case. It is seen that the acceptance of original declared price is dependent on the fact that there is no variation in the nature of goods which had been contracted. In the instant case, it is seen that the LDT of the goods appearing in the original MoA is different from the LDT mentioned in the later MoA in these circumstances, the decision of Tribunal in the case of Lucky Steel Industries 2006 (6) TMI 246 - CESTAT, MUMBAI may not be applicable. Similarly in the case of MALWI SHIP BREAKING VERSUS COMMISSIONER OF CUSTOMS, JAMNAGAR 2007 (11) TMI 530 - CESTAT, AHMEDABAD relied on by the Revenue, it has been clearly held that there was no discrepancy in the list of items agreed upon and the items actually reported as seen from the surveyor report. The fact in the instant case is different and therefore, the said decision also has no applicability in the instant case. It is found that the genuineness of the MoA dated 22.11.2012 has not been doubted. It is also noted that the LDT mentioned in the MoA dated 05.11.2012 between Ace Exim Pvt. Ltd. and Alang Auto Gen. Engg. Pvt. Ltd. was not found to be correct when the surveyor boarded vessel. The MoA dated 22.11.2012 contains a different a LDT which is lower by 507 MT - Since the new MoA dated 22.11.2012 has not been found to be incorrect or fabricated and there was variation in the specification of the goods imported, the Revenue cannot reject the price mentioned in the MoA dated 22.11.2012. There are no merit in the impugned order - appeal allowed.

Summary

Issues Involved:
1. Determination of the transaction value for the purpose of customs assessment.
2. Applicability of the Memorandum of Agreement (MoA) and its addendums in determining the assessable value.
3. Genuineness of the MoA and the reasons for price variation.

Summary:

Issue 1: Determination of the transaction value for the purpose of customs assessment.

The appeals were filed against the finalization of provisional assessment under section 18(1) of the Customs Act, 1962. The appellant sought clearance of the goods at USD 15,90,930/- based on the MoA dated 22.11.2012. However, the Revenue assessed the goods based on the MoA dated 05.11.2012 at USD 17,28,000/-. The Tribunal noted that the transaction value should be the price actually paid or payable for the goods when sold for export to India, as per Rule 4(1) of the Customs Valuation Rules.

Issue 2: Applicability of the Memorandum of Agreement (MoA) and its addendums in determining the assessable value.

The Tribunal referred to the decision in Chaudhary Ship Breakers, where it was held that the actual payment of price in terms of the agreement between parties cannot be ignored while determining the value of the vessel under Section 14 of the Act. The Tribunal emphasized that the transaction value should be accepted unless there are special circumstances or the genuineness of the MoA is in question.

Issue 3: Genuineness of the MoA and the reasons for price variation.

The Tribunal found that the LDT mentioned in the original MoA was different from the LDT in the subsequent MoA, which was lower by 507 MT. The Tribunal held that the genuineness of the MoA dated 22.11.2012 had not been doubted, and the variation in the specification of the goods imported justified the acceptance of the price mentioned in the new MoA. The Tribunal concluded that the Revenue could not reject the price mentioned in the MoA dated 22.11.2012 and allowed the appeal, setting aside the impugned order.

Conclusion:

The Tribunal allowed the appeal, holding that the transaction value mentioned in the MoA dated 22.11.2012 should be accepted for customs assessment, as the genuineness of the MoA was not in question and there was a justified variation in the specifications of the goods imported.