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TMI Blog2022 (6) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 17 (5) of the Customs Act, 1962 making it mandatory to pass an speaking order within prescribed period by the concerned authorities in case of any changes made to self assessment made by the importer while filing the bill of entry. - Customs Appeal No. 86465 of 2021, 86467 of 2021, 86468 of 2021, 86469 of 2021, 86470 of 2021, 86471 of 2021 and 86473 of 2021 - INTERIM ORDER NO. 6-12/2022 - Dated:- 4-5-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND MR. P. DINESHA, MEMBER (JUDICIAL) Shri H.K. Hirani, Advocate, for the Appellant Shri Manoj Das, Assistant Commissioner, Authorised Representative for the Respondent ORDER These appeals are directed against order-in-appeal No. 254 to 260 (Gr.IV)/2021(JNCH)/Appeals dated 25.03.2021 of the Commissioner of Customs (Appeals), Nhava Sheva, Mumbai- II upholding the assessment order enhancing the value as declared by the importer at the time of filing Bills of Entry. 2.1 Appellants have filed Bills of Entry for importation of aluminium scrap. They filed Bill of Entry declaring the transaction value as assessable value for the purpose of assessment of customs duty. After taking consent of the appellants, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or export goods or such part thereof as may be necessary. (3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, insurance policy, 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 is in his power to produce or furnish, and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, the proper officer was authorized to require the importer, exporter or any other person to produce any contract, broker s note or any other document as specified in the proviso and to furnish any required information. Notwithstanding that the statements made in the bill of entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it was found subsequently on examination or testing of the goods or otherwise that any statement in such bill of entry or document or any information so furnished was not true, he could have proceeded to reassess the duty. Where the assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of the goods, classification, exemption or concession, speaking order shall be passed within 15 days from the date of assessment of the bill of entry or the shipping bill as the case may be as provided in Section 17(5). 33 . Under the provisions of Section 17 as amended by Finance Act of 2011, Section 17(1) has provided to self-assess the duty if any leviable on such goods by importer or exporter as the case may be. Self- assessment is an assessment as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). Thus any enhancement made on the bill of entry on the acceptance of the importer/ exporter will not satisfy the requirement of Section 17. 3.7 We find that on the issue, Tribunal has been taking contrary views as is evident from the following decisions:- A. Cases decided holding that once the Enhancement of value as accepted the Importer forgoes the right to challenge the same In case of Laxmi Colour Lab [1992 (62) E.L.T. 613 (Tribunal)] by the supreme court, tribunal observed as follows: 6. As regards the finding of the Collector that the appellants have accepted the escalation of value, the letters dated 1st and 2nd August, 1984 i.e. well before the impugned orders were passed. However, there is no proof that these letters were actually sent to the Collector. 7. In the absence of any endorsement by the Collector that they were received in the office of Collector they cannot be relied upon. However, even assuming that there is acceptance, it does not preclude the appellant from c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification in accordance with the wishes of the authorities or even under some misapprehension, and if the law allows it a right to ask for refund on proper appraisement and which is actually applied for the party cannot be estopped from making such application and ask for such refund. In case of AAA Impex [2019 (370) E.L.T. 1285 (Tri.- Del.)], tribunal held as follows: 9 . The dispute in the present case is regarding the valuation of the goods imported by the respondent. The Assessing Authority re-assessed the imported goods at values higher than what was declared by the respondent in the Bill of Entry for self- assessment. The respondent accepted the enhanced value. To this effect CHA, the authorised agent of the respondent, has signed a note accepting the enhanced value. In view of such admission, no speaking order was issued as per requirements for Section 17(5) of the Customs Act, 1962. In spite of the acceptance before the Assessing Authority, the importer/respondent challenged the valuation by filing appeal against the assessment. The impugned order passed by the Commissioner (Appeals) set aside the re-assessment of the goods and restored the self-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. It is to be noted that re-assessment was done by the process of adjudication at the level of Additional Commissioner, and the value was re-determined as per Rule 7 of the Customs Valuation Rules. And the basis for such enhancement was shown to the importer and his concurrence recorded by means of statement. The facts are also similar in the case of DJP International (supra). In contradistinction to the facts in these cases, we note that in the present appeal, other than the admission on the part of the importer, we find no basis for the adoption of the enhanced value. 14 . We are of the view that, in spite of the admission on behalf of the importer, the Revenue is required to satisfy the requirements prescribed under Section 14 of the Customs Act read with Customs Valuation Rules before any enhancement of valuation. It has been argued by Revenue before us that the Revenue did not record the basis for such enhancement since the requirement of speaking order was waived by importer. B. Cases decided holding that once the Enhancement of value as accepted the Importer forgoes the right to challenge the same In the case of Hanuman Prasad Sons [2021-TIOL-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999. After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5-1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and paid the duty amount on the loaded value of the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent has, however, placed reliance upon certain decisions passed by the Tribunal to contend that the transaction value has to be first rejected and thereafter the assessing officer can re-assess with reasons and in accordance with the provisions of the Valuation Rules. 37. The first decision is Maruti Fabric Impex, a matter concerning the present appellant. The Tribunal observed: 2. As per facts on record, the respondents imported fabrics and filed bills of entries declaring the transaction value as the assessable value in terms of the provisions of Section 14 of Customs Act. The bills of entries were assessed by the proper officer by enhancing the declared assessable value. The respondents cleared the goods on payment of duty on the enhancement. 3. The Appellate Authority took into consideration various facts including the issue as to whether an assessee can file an appeal against assessment made in the bills of entries, once he pays duty on the same and clears the goods, observed that acceptance of enhanced value proposed by the Department by an assessee does not preclude him from challenging the enhancement by way of appeal. As regards enhancement of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving reasons for rejection of the declared value and enhancement thereof. xxxxxx xxxxxx xxxxxx 7. Having considered the rival contentions, we find that assessing officer have been making enhancement in a routine manner and the respondent who are regular importers are left with no choice but to sign on the dotted line for taking delivery of their goods to carry on their business, and also save the demurrage charges if the consignment is delayed in the port for want of clearance. Relying on the precedent Final Order No. 63455- 63456/2018 dated 25.10.2018 of this Tribunal and also in view of the Order-in-Appeal No. CC(A)/CUS/D- II/ICD/788- 1083/2014 dated 31.12.2014 had been accepted in respondent own case, we uphold the impugned common order(s) in appeal. Accordingly, these appeals by Revenue are dismissed being without merit. The stay applications also stand disposed of accordingly. 41. A perusal of the aforesaid decision also does not indicate that the importer had accepted the declared value in writing or that the importer had waived his right to a speaking order. In fact, only a general statement has been made that the assessing officer have been making enhanceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the declared transaction value is rejected, then it has to be determined in accordance with the procedure prescribed in rules 4 to 9. These decisions of the Supreme Court, for the reasons stated above, do not help the respondent. 46. Learned counsel for the respondent has also emphasized that NIDB data cannot be the sole basis to reject the transaction value without any cogent reasons. As seen above, the importers had in writing accepted the transaction value and it is perhaps for this reason that they did not require any show cause notice to be issued to them or a personal hearing to be granted to them. The respondent is, therefore, not justified in asserting that the transaction value has been determined on the basis NIDB data. It was their acceptance of the value that formed the basis for determination of the value. The decisions relied upon by the respondent to support the contention sought to be raised are, therefore, of no benefit to them. 47. The general observations made the Commissioner (Appeals)in the impugned order that the value declared in the Bills of Entry were being enhanced uniformly by the Department for a considerable period of time was uncalle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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