2020 (12) TMI 711 - AT - Customs

Evasion of Anti-Dumping Duty - import of melamine - rejection of assessable value declared by the Appellant and redetermination of the assessable value - whether the importers of melamine had resorted to evasion of anti-dumping duty by over valuation of the goods imported? - extended period of limitation - penalty - HELD THAT - It is by a Notification dated February 19, 2010 that the Central Government imposed anti-dumping duty on melamine originating from China or any other country other than China at a rate that was equivalent to difference between the amount mentioned in Column No. 9 i.e US 1681.49 per MT and the landed value. It was also mentioned in the Notification that the landed value would mean the assessable value as determined under the Customs Act and would include all duties of customs except duties levied under sections 3, 8B, 9 and 9A of the Tariff Act. The Supreme Court in Wipro Ltd. vs Assistant Collector of Customs 2015 (4) TMI 643 - SUPREME COURT examined the provisions of section 14 of the Customs Act as it stood prior to 2007 and also as it stood after the amendment in 2007. It noticed that under the unamended provision, the principle was to find out the valuation of goods by reference to the value and it introduced a determining / fictional provision by stipulating that the value of all the goods would be the price at which such or like goods are ordinarily sold . However, under the amended provisions, the valuation is based on the transaction‟ price namely, the price actually paid or payable for the goods . What has to be seen under section 14(1) of the Customs Act, as amended in 2007, is the transaction value of the goods imported or exported for the purpose of customs duty and transaction value is stated to be the price actually paid or payable for the goods when sold for export to India for delivery at that time and place of importation. Sub-section (1) of section 14 of the Customs Act also makes it clear that the price actually paid or payable for the goods will not be treated as transaction value‟ where the buyer and the seller are related to each other. As per the first proviso to the amended section 14 (1), certain charges are to be added to the transaction value of the imported goods. It is, therefore, clear that while there was scope for addition of notional charges in the assessable value under the un-amended section 14 of the Customs Act, but after the actual sale price concept was introduced in the year 2007 on the basis of GATT guidelines and section 14 of the Customs Act was amended in 2007, any inclusion of notional charges seems to have lost its relevance and only actual cost incurred by the buyer is required to be considered. Additions on the basis of statement of 3 persons - HELD THAT - it is necessary to examine whether denial of cross- examination has vitiated the impugned order because it is these statements that were relied upon by the Principal Commissioner to hold that the price of the imported goods had been artificially increased to avoid anti-dumping duty. The Allahabad High Court in Commissioner of Central Excise v/s Kurele Pan Products Pvt. Ltd. 2014 (4) TMI 463 - ALLAHABAD HIGH COURT , while dealing with an excise matter, held that if the authority wants to rely upon the statement of any witness, it is necessary to provide an opportunity to cross-examine the witness and failure to provide such an opportunity results in denial of the principles of natural justice. Cross-examination was held to be a valuable right of the noticee. Time limitation - HELD THAT - There is no consideration of the reply submitted by the Appellant regarding limitation in the order passed by the Principal Commissioner, since all that has been stated is that noticees No. 1,2 and 4 in collusion with each other had fraudulently succeeded in evading the anti-dumping duty on the melamine imported by them, which required to be recovered from them under the provisions of sub-section (4) of section 28 of the Customs Act. In this connection the Principal Commissioner had observed that the transaction based on fraud continues to be tainted and the person committing fraud is precluded from deriving any benefit - Section 28(1) of the Customs Act requires that if any duty has not been levied for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts, the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with duty. It was, therefore, imperative for the officer to have mentioned in the show cause notice why the provisions of sub-section (4) of section 28, which permits notice to be issued within five years, were being invoked. In the absence of any charge in the show cause notice and finding in the order passed by the Principal Commissioner, the confirmation of the demand cannot also be sustained - it is not possible to sustain the order dated May 30, 2019 passed by the Principal Commissioner. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Justification and recoverability of anti-dumping duty.
2. Invocation of the extended period of limitation.
3. Liability of imported goods for confiscation.
4. Liability for penal action.

Detailed Analysis:

1. Justification and Recoverability of Anti-Dumping Duty:
The Principal Commissioner rejected the declared assessable value of melamine imported by the Appellant, M/s Shubham Chemicals & Solvents Ltd., and others, and redetermined it under rule 5 of the Customs Valuation Rules, 2007 read with section 14 of the Customs Act, 1962. The Commissioner concluded that the importers had artificially increased the transaction value to evade anti-dumping duty, based on statements from co-noticees, which were not retracted. The Appellant argued that the goods were imported under proper Bills of Entry, payments were made through bank transactions, and the customs duty was paid correctly. The Tribunal found that the denial of cross-examination of co-noticees vitiated the order, as it violated principles of natural justice. The Tribunal emphasized that the transaction value should be based on the actual price paid or payable, not on notional charges.

2. Invocation of the Extended Period of Limitation:
The Principal Commissioner invoked the extended period of limitation under section 28(4) of the Customs Act, citing evasion of anti-dumping duty by mis-statement and suppression of facts. The Appellant contended that the show cause notice was issued beyond the normal period without any specific charge of collusion or wilful mis-statement. The Tribunal noted that the show cause notice lacked specific reasons for invoking the extended period and that mere general statements of suppression were insufficient. The Tribunal referred to various Supreme Court judgments, emphasizing that suppression must be deliberate and with intent to evade duty, which was not established in this case.

3. Liability of Imported Goods for Confiscation:
The Principal Commissioner found that the imported goods were not available for confiscation as they had already been released. Consequently, no redemption fine was imposed. The Tribunal did not find any grounds to contest this finding.

4. Liability for Penal Action:
The Principal Commissioner imposed penalties on the importers and individuals under sections 112(a) and 114AA of the Customs Act, based on the established charge of overvaluation and evasion of anti-dumping duty. The Appellant argued that the transactions were genuine, conducted through proper banking channels, and supported by valid documents. The Tribunal found that the reliance on statements without allowing cross-examination was unjustified, and the transactions were legitimate. Therefore, the imposition of penalties was unwarranted.

Conclusion:
The Tribunal set aside the order dated May 30, 2019, passed by the Principal Commissioner, finding that the denial of cross-examination and the lack of specific reasons for invoking the extended period of limitation invalidated the findings of overvaluation and evasion of anti-dumping duty. All five Customs Appeals were allowed.