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TMI Blog2010 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... may be stated that the statutory discretion cannot be fettered by selfcreated rules or policy. Although it is open to an authority to which discretion has been entrusted to lay down to regulate exercise of discretion, it cannot, however, deny itself the discretion which the statute requires it to exercise in individual cases. The proper authority notwithstanding board circular dated 12th February, 2008 is required to consider the prayer of the petitioners on its own merits well within the scope of Section 14 of the Act and the Customs Valuation Rules by a reasoned order following principles of natural justice. - In absence of any reasoned order it will not be proper on the part of this Court to prevent the proper Officer from exercising his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue as under Section 14(1) of the Customs Act, 1962. Incidentally, the Circular No.4/2008Cus dated 12th February, 2008 issued by the Ministry of Finance, Govt. of India laying down certain guidelines regarding valuation practice of second hand machinery is also a subject matter of challenge in the petition. THE FACTUAL SCORE: 3. The factual score emerging from the petition is that the petitioners are Public Ltd. Co. regularly importing raw materials as well as capital goods (both new and second hand) for the purposes of manufacturing automotive components. Some times imports are also made by the petitioners from their Group Companies. 4. The petitioners, in the case in hand, imported a second hand machinery vide bill of entry No.87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing on behalf of petitioners submits that the transaction in question meets the requirements of Section 14 of the Customs Act and Rule 3(1) of the Customs (Determination of Value of Imported Goods) Rules, 2007 framed thereunder ("the Rules" for short), as such the transaction value ought to be accepted by the respondents in the case in hand. 8. Mr.Shridharan, while elaborating his submissions, submits that as per Section 14 of the Act, the value for the purpose of customs duty is a transaction value i.e. price actually paid or payable for the imported goods. According to him, as per Rule 3(1) of the Rules, the value of the imported goods should be the transaction value, i.e. the price paid or payable for the imported goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the course of international trade and the same is acceptable." 12. Mr. Sridharan, further submits that the aforesaid judgment is followed by the Apex Court in the case of Mirah Exports Pvt. Ltd. 1998(98) ELT 3 (SC). 13. Mr. Sridharan further submits that the circular dated 12th February, 2008 is liable to be quashed in so far it holds that if the declared value of the second capital goods is lower than the value determined on the basis of depreciation, then declared value is to be rejected. He expressed apprehension that the respondents may rely on the said board circular dated 12th February, 2008 to reject the transaction value as declared by the petitioners. He also tried to press into service the principles of Res Judicata conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Customs duty is governed by Section 14 and Rule 3 of the Rules. 17. So far as the Board Circular reproduced in the petition is concerned, it lays down certain guidelines based on the analysis of the various decisions of the Tribunal and the Apex Court judgments on the issue of valuation of second hand machinery and lays down certain guidelines for the guidance and assistance of the Revenue Officers. This circular does not mean, one should ignore the provisions of the Act and Rule and judicial precedents holding the field. The proper Officer is bound to consider the case of the petitioners independent of the guidelines. The Apex Court in the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar, 2003 (4) SCC 579 has clearly laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the proper Officer is yet to take proper view of the matter. In absence of any reasoned order it will not be proper on the part of this Court to prevent the proper Officer from exercising his discretion and to undertake the job of the adjudication officer. 20. So far as applicability or non applicability and/or invocation or non invocation of the circular is concerned, the issue being premature, needs no consideration at this stage. 21. In the aforesaid facts and circumstances of the case, justice would be done by directing the proper Officers to adjudicate upon the issue and assess the bills of entry with immediate effect so as to enable the petitioners to clear the goods. Before passing the order of assessment, we have no manner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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