2020 (2) TMI 613 - AT - Customs

Validity of SCN - SCN issued u/s 28 of the Customs Act of 1962 - appellant is importer or not - final assessment of Bills of Entry - Valuation - inclusion of freight and insurance charges in the assessable value or not - HELD THAT - In the present case, the appellant is not the importer and in fact, the importer is M/s JSW as per Section 2 (26) of the Customs Act, 1962. In the case of ASPINWALL CO. VERSUS COMMISSIONER OF CENTRAL EXCISE, TRICHY 2001 (4) TMI 144 - CEGAT, CHENNAI , it has been held that simply by presenting papers for clearance of goods, one does not become importer of goods or agent of importer under Section 147 of the Customs Act, 1962. The person presenting the papers cannot be held to be responsible for short levy of duty on grounds of having filed Bill of Entry on behalf of importer - Further, the addition of 1% of the price paid to ship owner as loading and un-loading charges is also not sustainable in law. In the present case, the actual unloading charges being nil, nothing can be added towards un-loading charges. Further, the addition of 20% and 1.125% of the price paid to ship owner towards freight and insurance, is also not sustainable in law because the said addition is based on a wrong presumption that price paid to ship owner for bunkers and stores is a FOB price. Further, no amount has been incurred by JSW in addition to what has been paid to ship owner and on which duty has already been assessed towards freight and insurance. Thus, when Customs duty has already suffered on value of bunkers and provisions, which included all costs incurred upto the Haldia Port, there is no question of any addition of freight and insurance. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Appeals against orders of Commissioner (Appeals) rejecting appeals and upholding Order-in-Originals; Challenge to show-cause notice for payment of differential Customs duty; Validity of additions to assessable value under Customs Valuation Rules, 2007.

Analysis:

1. Challenge to Commissioner (Appeals) Orders:
- Ten appeals filed against orders of Commissioner (Appeals) rejecting appeals and upholding Order-in-Originals.
- Identical facts and issues involved in all appeals.
- Appellant challenged the sustainability of the impugned orders by Commissioner (Appeals).

2. Validity of Show-Cause Notice:
- Appellant argued that the show-cause notice issued under Section 28 of the Customs Act to a person other than the importer is not maintainable.
- Cited legal precedents to support the argument that a finalized Bill of Entry cannot be disturbed by a show-cause notice.
- Referred to the case law ITC Ltd. Vs. CCE, Kolkata-IV to strengthen the argument.

3. Additions to Assessable Value:
- Appellant contested the additions made to the assessable value under Customs Valuation Rules, 2007.
- Challenged the addition of 1% of the price paid to the ship owner as loading and unloading charges.
- Referred to the Supreme Court decision in Wipro Limited Vs. A.C. Customs to argue against the addition of unloading charges.
- Argued against the addition of freight and insurance charges based on the presumption of F.O.B. price, citing incorrect application of Customs Valuation Rules.
- Emphasized that no additional costs were incurred by the importer beyond what was paid to the ship owner.

4. Judgment and Decision:
- Tribunal found that the appellant was not the importer as per the Customs Act, and the importer was M/s JSW.
- Ruled that the additions to the assessable value were not legally sustainable.
- Quoted legal precedents to support the decision, including the case of Aspin Wall and Company and Wipro Ltd. Vs. A.C. Customs.
- Set aside the impugned orders passed by the Commissioner (Appeals) and allowed all the appeals of the appellants with consequential relief.

This detailed analysis covers the issues raised in the appeals, the arguments presented by both sides, and the ultimate decision of the Tribunal based on legal principles and precedents cited during the proceedings.