2023 (8) TMI 1162 - AT - Customs

Levy of Additional duty of Customs (CVD) on MRP basis - undervaluation of cement imported from Bangladesh - self-assessment of the Bills of Entry by the importer not challenged by the department - 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. 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 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. 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 - Appeal allowed.

Summary

Issues involved: Undervaluation of cement imported from Bangladesh.

Summary:

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 product was subject to levy of Additional duty of Customs (CVD) on MRP basis. The Appellant requested the exporter to print the MRP on the bags. A Show Cause Notice was issued alleging evasion of Additional duty of customs due to undervaluation. The Adjudicating Authority confirmed the duty demand, interest, and penalty. The Appellant appealed to the Commissioner (Appeals) Guwahati, arguing that the self-assessed Bills of Entry were not challenged by the department and thus became final. The Commissioner (Appeals) upheld the original order. The Appellant contended that different importers through different land ports could have different MRPs due to various factors, including the place of importation. They argued that the price difference did not indicate undervaluation. The Appellant also cited a Supreme Court decision emphasizing the need to challenge self-assessment before demanding differential duty. The Tribunal observed that the different MRPs were reasonable given the varied importation locations and that there was no evidence of selling goods at a higher price than MRP. The Tribunal set aside the impugned order, citing the Supreme Court's stance on challenging self-assessment before demanding differential duty.

Decision:
The Tribunal found the demand unsustainable due to the lack of evidence supporting undervaluation and the failure to challenge the self-assessment of Bills of Entry. Citing a Supreme Court decision, the Tribunal held that the demand for differential duty without challenging the original assessment was not sustainable. Consequently, the Tribunal allowed both appeals filed by the Appellant.