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TMI Blog2019 (11) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment was within its rights to impose the conditions of the Bond for violation of the provisions therein. We find that the impugned show-cause notice is about the recovery of duty foregone in terms of the conditions of the Notification. The appellants having not appealed against the assessment of the Bill of Entry and having not requested for provisional assessment, cannot demand the same while replying to the show-cause notice. Such a request, is beyond the scope of the provisions of Customs Act. Once a machine is imported in terms of the EPCG license wherein certain export obligation has been fixed by the DGFT authorities and particularly, in the case when the EPCG Committee has rejected the appeal made by the appellant, Customs cannot revalue the goods and reduce the export obligation accordingly. We find that the appellants have shown no case for redetermination of the value of the imported goods in terms of the provisions of Customs Act either. There is no infirmity in the lower authorities coming to a conclusion that the redetermination, of the value was not possible in the facts and circumstances of the case and under the provisions of law - appeal dismissed. - C/58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine the value of goods imported and for reassessment; Tribunal dismissed the appeal filed by Revenue against the order challenging the power of the Appellate Commissioner to remand; no further challenge was preferred by the revenue. 2.1. The original authority, without following the directions of the Appellate Commissioner, vide OIO No: 1/2007 dated 25.1.2007, rejected the claim of re-determination stating that no re-determination could be done as goods are given out of charge by Customs; the order was challenged before the Appellate Commissioner, who, vide Order in appeal No: 132/08 dated 31.03.2008, confirmed the order of the original authority. Hence, the present appeal is filed. 2.3. The Assistant Commissioner of Customs issued SCN dated 16.7.2001 for ₹ 29, 03,307 for the rest of the Pro-rata EO pertaining to 3rd and 4th years to the importer. the issue is pending with Comr.(A); while the appeal was pending before the appellate Commissioner, appellants filed application before Settlement Commission against the above referred OIO: EPCG 4/96 GR VII dated 3.5.1999 and the above referred 2nd SCN dated 16.7.2001 by claiming that the initial Assessment w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21,27,922; as per the agreement with the said manufacturer (approved by the Government of India) they supplied the appellant an identical machine for the correct value of US$ 1,70,244 (₹ 53,72,392); the appellant paid an amount of ₹ 55,55,330; the appellant offered shares for the value of ₹ 88,00,000 to M/s Winter Umwelttechnik, Germany; the appellants arrived at the value of ₹ 21,27,922, by considering the total of the amounts received from M/s Winter Umwelttechnik, Germany and the value of the machinery supplied free and deducting the value of the shares offered to the said company. 3.1. The learned counsel for the appellant states that it is the case of the appellant that once the value of the imported machine is reckoned on the basis of the value actually paid by the appellant to the foreign supplied (US$4, 31,330) as reduced by the amount received by the appellant from the German manufacturer (₹ 21, 27,722) then it becomes clear that the appellant had to pay only about ₹ 48 Lakhs towards duty liability, at the full rate under the Customs Tariff; against this, the appellant has paid an amount of ₹ 69,12,637 ( by cash + Bank Gua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he limited challenge before Tribunal on the aspect of the power of the Appellate Commissioner to remand was dismissed; therefore, it was not open for the original authority and the Appellate Commissioner not to comply with the order of the Appellate Commissioner to re-value the goods; duty of customs is on the value of goods actually imported and it being not disputed that the value of goods imported was less than what was actually assessed, no duty could be demanded based on the wrong valuation. 3.5. The learned counsel for the appellants contends that the directions of commissioner appeals on revaluation of goods having become final, judicial propriety mandates that it is followed and was binding on the original authority; refusal for revaluation by the Original Authority and reiterating the communication dated 15.03.2001 of the Jurisdictional Commissioner is judicial impropriety; Appellate Commissioner remanded the case and so order-in-original demanding duty and interest got set-aside; Oder-in-original passed after the remand by the Appellate Commissioner, did not raise any demand of duty or interest on the appellant; therefore, there is no valid demand for invocation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appealable quasi-judicial order; the assessable Value was not challenged at all within the stipulated time limit; the importer has come up with the request for re-determination of assessable Value and re-assessment after a lapse of 5 years from the date of assessment of Bill of Entry; initial assessment was not made under provisional assessment and the importer has not paid the duty for the initial assessment under protest; appellant s claim of provisional assessment was rejected by Settlement Commission. He relies upon the following cases. (i). CCE, Kanpur Vs Flock (India) Pvt. Ltd. [2000 (120) ELT (285] (ii). Priya Blue Industries Ltd. Vs C (P) 2004 (172) ELT 145 (SC.). (iii). UOI Vs kirloskar Pneumatic Co 1996 (84) ELT 401 (it was held that writ cannot be invoked for directing the authorities to act contrary to law. 4.2. Learned AR, further submits that the SCNs have been issued to the Appellant based on the contravention of the conditions of the EPCG Notification No. 110/95 dated 05.06.1995 and the terms and conditions are documented in the form of Bond specifying the terms and conditions for both the parties; therefore, the subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities issued the due certificates/letters; subsequently HC in the Final Order directed the Customs Authorities to dispose of the Refund claim of the Importer by considering the Essentiality Certificates issued by the DGH; thus, after analyzing the merit of the issue (Delay on the part of DGH ONGC in issuing Certificate/Letter in the absence of any fault on the part of importer), there was a Specific Direction from HC to consider the essentiality certificates while disposing the refund claim. in the instant case on hand, the importer failed to fulfill to fulfill EO, and reasons put forth for non-fulfilment of EO revising the AV also have not been considered by DGFT; hence, the High Court of Kerala has not issued any direction to the DGFT to issue EODC or to revise Assessable Value; instead, directions have been issued to Customs Authorities to consider the plea of additional grounds on Valuation; at the same time, the HC categorically made it clear that it has not considered the merits of the contentions taken by the respective parties in the Original Petition; under the circumstances, the direction of Consideration cannot be equated with Positive consideration ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as having not availed the benefit of concessional rate of duty under EPCG scheme. 7. We find that learned AR forcefully rebutted all the claims of appellants on the following grounds. (i) There is no provision under law to consider the appellant s claim for redetermination or reassessment of the Bill of Entry after a considerable period of more than 5 years. More so, due to the fact that the assessment was not provisional. (ii) In the scheme of EPCG, customs alone cannot revise the value of the impugned goods and thus, the export obligation. The EPCG Committee which also contains a Member from Customs has gone into the request of the appellant and concluded that the appellant has not made any case for reconsider the value. The appeal filed by the appellant, against the decision of EPCG Committee, before the Joint Secretary was also rejected. (iii) The appellant s contention that Hon ble High Court at Ernakulam, vide Order in Writ Petition No.20897/1999, has directed the authorities that they shall consider the request of revaluation by the appellants. The appellant s contention that the Commissioner (A), in his order No. 121/2004 dated 18.6.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . in Civil Appeal No.293-294/2009. The Hon ble Apex Court observed that: 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion 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. 7.2 We also find that the appellants have submitted a Bond at the time of import binding themselves to the conditions envisaged in the Notification No.110/95 dated 5.6.1995. We find that the Department was within its rights to impose the conditions of the Bond for violation of the provisions therein. We find that the impugned show-cause notice is about the recovery of duty foregone in terms of the conditions of the Notification. The appellants having not appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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