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TMI Blog2023 (5) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant Shri D S Maan, Deputy Commissioner (AR) for the respondent ORDER PER : C J MATHEW Four appeals against two adjudication orders of Commissioner of Customs (Import-II), New Custom House, Mumbai, on identical issue of addition of freight for computation of assessable value and confiscation for misdeclaration of country of origin, are disposed of by this common proceedings. The adjudicating authority proceeded on the finding that the cargo, covered by import general manifest no. 224501/23.01.2020 of MT Braveworth filed for discharge at Mumbai and purportedly taken on board at Sohar in Oman during the voyage out of Fujairah in UAE from 9th January 2020, was, in fact, loaded during clandestine call at Dayyer in Iran between 15th January 2020 and 18th January 2020, and cargo, covered by import general manifest no. 2244928/22.01.2020 of MT Chem Trader filed for discharge at Mumbai and purportedly taken on board at Jebel Ali on 16th January 2020 was, in fact, loaded during clandestine call at Bamder Imam Khomeini in Iran between 12th January 2020 and 14th January 2020, necessitating enhancement of freight component for recovery of additional duty and confiscation under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try no. 6669516/28.01.20, no. 6669517/28.01.20, no. 6669485/28.01.20 and M/s BK Sales Corporation filed bills of entry no. 6732654/03.02.20 and no. 6732450/03.02.204 for clearance of 'methanol' declaring the particulars as in the documents. The goods imported by M/s BK Sales Corporation, valued at Rs. 14,55,00,640 inclusive of freight of Rs. 49,31,578, were confiscated under section 111(m) of Customs Act, 1962 with offer of option to redeem on payment of fine of Rs. 2,00,000 under section 125 of Customs Act, 1962 while imposing penalty of Rs. 12,07,743 under section 114A of Customs Act, 1962 along with penalty of Rs. 2,00,000 under section 114AA of Customs Act, 1962. The goods imported by M/s Jupiter Dyechem Pvt Ltd, valued at Rs. 6,39,10,272 inclusive of freight of Rs. 21,76,174, were confiscated under section 111(m) of Customs Act, 1962 with offer of option to redeem on payment of fine of Rs. 2,00,00 under section 125 of Customs Act, 1962 while imposing penalty of Rs. 5,32,946 under section 114A of Customs Act, 1962 along with penalty of Rs. 2,00,000 under section 114AA of Customs Act, 1962. 3. In the second order [order-in-original no. 145/2021-22/CAC/CC (Import-II)/MKK dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Authorised Representative made a valiant effort by placing before us the pricing of these goods in the international market and the mode of computation in the industry to urge us, as the final fact-finding authority, to cause the appellants to explain the entirety of transactions with the plea that the investigation had, from inadvertence, not done so. It would appear that Learned Authorised Representative has not been able to appreciate the difference between quasi-judicial adjudication and admissibility of additional grounds in appellate proceedings. Categorisation among 'fact-finding authorities' does not admit to equation with adjudication arising from section 28 of Customs Act, 1962 or section 124 of Customs Act, 1962 equally; all it implies is that facts, as admitted by and ascertained in, proceedings before 'fact-finding authorities' are not, normally, subject to reascertainment in the constitutional courts that offer appellate recourse under the taxing statute. Customs Act, 1962 envisages the Tribunal to be an appellate authority without jurisdiction to consider matters other than that in appeal; as far as the present proceedings are concerned, there is no appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be so, for assessment and that the show cause notice was bereft of any such conclusion. According to Learned Counsel, the adjudicating authority had not been able to establish that the last port of call of the two vessels carrying the impugned goods was other than Sohar in Oman and Jebel Ali in UAE as indicated in the documents filed with the bill of entry; there was, according to him, no ground for charging them with submission of documentation intended to suppress material particular or misdirect the assessment process. 7. In addition to the elaborate pleading on the enhancement of assessable value owing to non-acceptability of the invoice for misdeclaring the origin and the adoption of the appropriate option in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, it was argued by Learned Authorised Representative that the declaration of place of origin of the impugned goods was incorrect and that the freight element for fulfilment of the contractual engagement with the suppliers had not been properly reflected in the invoice. According to him, as the goods were sourced from Iran, a country with which most nations do not have trade relations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and handling charges associated with the delivery of the imported goods to the place of importation as well as the cost of insurance to place of importation. There is no prescription as to the circumstances in which such addition shall be made except by reference to the contracted value being 'free on board (FOB)' and that the mandatory loading is contingent upon the cost of such services not being ascertainable. 10. The assessments had been taken up on the value corresponding to that in the invoice with addition of purported freight from Iran to Mumbai. The invoices had been issued by M/s Trade Unity FZE on 'cost insurance freight (CIF) terms and by M/s Kriscon DMCC, Dubai on 'cost and freight (CFR)' terms and having freight cost separately therein do not, of themselves, warrant invoking of rule 10 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 except on finding that the freight was payable by the importer to the carrier or that the freight had been absorbed by the seller. These are the only circumstances in which the payment terms of the invoice, insofar as the inclusions mandated by rule 10(2) of Customs Valuation (Determination of Value of Importe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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