2023 (8) TMI 1055 - AT - Customs

Undervaluation of imported goods - cement imported from Bangladesh - it was alleged by Revenue that the declared MRP of the cement imported by the Appellant was much less as compared to the MRP declared on the cement imported from the same manufacturer through other ports - original assessment of the Bills of entry not challenged - HELD THAT - It is observed that different lots of the impugned goods were imported by different importers through different land ports though the goods were manufactured by the same manufacturer in Bangladesh. The Appellant stated that the MRP printed on the goods imported through other ports can be different as the Place of importation itself was different and hence difference in MRP is quite natural - It is observed that MRP on the same item is decided in consideration of a number of factors besides landing cost and duty element. In the instant case the goods were imported through different ports. That itself is a valid reason for the difference in price. There is no evidence to suggest that the goods so imported through different ports under different MRP were being sold at same price. Hence, the price difference cannot be attributed to suppression of the value by the Appellant. Accordingly, the demand is not sustainable. The self-assessment of the Bills of Entry by the importer was not challenged by the department. The Hon ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT , has held that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. It is observed that the ratio of the above said decision is squarely applicable in this case - The impugned order passed demanding differential duty without challenging the original assessment of the Bills of entry is not sustainable. Hence, the demand is not sustainable on this count also.

Summary

Issues involved:
Undervaluation of cement imported from Bangladesh, challenge to self-assessment of Bills of Entry by the department.

Undervaluation of cement imported from Bangladesh:
The appellant, engaged in import and export business through land borders in Tripura, imported OPC/PPC Cement in 50 Kg. PP woven bags from Bangladesh. The department alleged undervaluation, stating that the declared MRP of the cement imported by the appellant was less compared to the MRP declared on cement imported from the same manufacturer through other ports. The appellant argued that different lots of goods were imported by different importers through different land ports, leading to variations in MRP, which is influenced by factors beyond just landing cost and duty element. The appellant contended that the price difference cannot be attributed to value suppression, as there was no evidence that goods imported under different MRP were sold at the same price. The tribunal held that the demand based on alleged undervaluation was not sustainable, considering the valid reasons for price differences due to goods being imported through different ports.

Challenge to self-assessment of Bills of Entry:
The appellant contended that the self-assessed Bills of Entry were not challenged by the department, invoking a decision of the Hon'ble Supreme Court which stated that differential duty cannot be demanded without challenging the importer's self-assessment. The tribunal observed that the demand for differential duty without challenging the original assessment of the Bills of Entry was not sustainable. Citing the Supreme Court's decision, the tribunal set aside the impugned order and allowed both appeals filed by the appellant.