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TMI Blog2010 (12) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... as all the petitions involve common questions of law. 2. In CWP No. 9152 of 2010, challenge is to order dated 11-1-2010, Annexure P.10, passed by the Commissioner of Customs (Appeals), Chandigarh upholding valuation of imported goods fixed by Assistant Commissioner of Customs vide order dated 5-2-2009, Annexure P.8 and order dated 7-5-2010, Annexure P.12 passed by Chief Commissioner, Customs and Central Excise, Chandigarh reiterating order dated 12-12-2008 of the Commissioner of Customs, Nhava Sheva in the matter of fixation of norms for valuation of Zinc skimming and Zinc Ash. 3. Background of the controversy as stated in the petition is that the petitioner imports Zinc ash and Zinc skimming for manufacture of fertilizer. In the year 2006, when it filed bills of entry for clearance of the imported goods, the department did not allow clearance on declared value and vide order dated 30-5-2006, goods were released on provisional assessment at the rate of US$ 1000 per metric ton. As per interim order of this Court dated 15-6-2006 in CWP No. 9341 of 2006, considering the contention of the petitioner that provisional valuation was exorbitant, the goods were allowed to be cleared at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition was disposed of directing Chief Commissioner, Customs and Central Excise to look into this aspect and to review the order of assessment dated 5-2-2009 as affirmed in appeal in case parameters for value were found to be erroneous. In pursuance of the said order of this Court, impugned order dated 7-5-2010 has been passed holding that the parameters laid down in order dated 12-12-2008 by Commissioner of Customs, Nhava Sheva were valid. Operative part of the said order is as under :- As per Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 when the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, it shall be deemed that Transaction Values cannot be determined under the provisions of Sub Rule (1) of Rule 3. Rule 3(4) provides that if the value cannot be determined under the provisions of Sub Rule (1), the value shall be determined by proceeding sequentially through Rule 4 to 9. In the instant case, Rule 4 to 8 are not applicable. Thus assessable value cannot be determined under these Rules. Therefore, the same shall be determined under rule 9 of the Customs Valuation (Determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parameters laid down by the Commissioner of Customs, Nhava Sheva were beyond the rules and could not be mechanically accepted, ignoring the transaction value of identical goods and other material. 6. In the reply filed, the impugned orders have been defended. As regards report Annexure P.5, it has been stated that the Commissioner of Customs, Nhava Sheva has not accepted the said report and held that valuation be taken to be 40% of LME and the order of assessment and appellate order based on the said norms were valid. 7. We have heard learned counsel for the parties and perused the record. 8. Relevant statutory provisions are as under :- Section 14 : Valuation of goods. - (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x xx xx xx xx 17. Assessment of duty. - (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed. (3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker s note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then - (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of [the duty finally assessed], the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. [(3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order under sub-section (2), at the rate fixed by the Central Government under section 28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof. (4) Subject the sub-section (5), if any refundable amount referred to in clause (a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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