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TMI Blog2023 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... t any protest. However, later on, the importer challenged the value assessment and filed appeals before the Commissioner of Customs (Appeals), New Delhi who vide the impugned order set aside the re-assessment of goods at enhanced value and restored the self-assessment at the declared value and allowed the appeals filed by the importer. 3. Heard the parties and perused the case records. 4. Ld. DRs appearing for the Revenue submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and evidence on record and without considering the law laid down by the Tribunal on identical issues. He further submitted that the Ld. Commissioner (Appeals) did not appreciate that the importer in this case after seeing the contemporaneous import data (prevailing during that period) has agreed to redetermination of value in their reply to query in EDI system and voluntarily forfeited their right of show cause notice and opportunity of personal hearing. He further submits that as per his acceptance, the value was enhanced by the department and duty was discharged by the importer without showing any protest up to the date of Out of Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order as provided in Section 17 sub-section 5 of the Customs Act, 1962. * Jai Shiv Trading Company Vs. Commissioner of Central Excise, New Delhi 2018 (359) ELT 208(Tri-Delhi) * Aestrik Techno-Signs Vs. Commissioner of Customs, NCH, New Delhi. Final Order No. 1146/2021. * M/s Sukhdev Exports Overseas Vs Commissioner of Customs (Export), Patparganj, New Delhi (2023 (4) ΤΜΙ 17-CESTAT NEW DELHI) * ICD Patparganj & Other ICDs Vs. Manvi Exim Pvt. Ltd. vide Final Order No. 50552-50559/2022 dated 04.07.2022 * Surieet Singh Chabbra VIs UOI (reported as 1997 (89) ELT 646 (SC) * Commissioner of Central Excise, Madras Vs Systems and Components Private Limited reported in 2004 (165) ELT 136 (SC) * Commissioner of Customs(Import), ICD-TKD., New Delhi Vs. M/s. Sodagar Knitwear Pvt. Ltd. [2018(362)ELT819(Tri-Del)] 9. On the other hand, the Ld. Counsel for the respondent has vehemently supported the impugned order passed by the Commissioner (Appeals) of Customs, New Delhi. He further submits that the Commissioner (Appeals) has allowed the appeal of the importer mainly on the following grounds:- a) That there is no evidence that the overseas supplier and the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduce the relevant findings of the coordinate bench in the case of M/s Hanuman Prasad & Sons cited (supra) which is reproduced herein below:- "21 The Commissioner (Appeals), despite a categorical statement made by the importers that they did not desire a speaking order to be passed, observed "an obligation was cast on the assessing authority to pass a speaking order disclosing the grounds for rejecting the declared value and only then the assessing officer could have enhanced the value." This finding of the Commissioner (Appeals) is perverse as it is clearly contrary to the specific statement made by the importers in the letters submitted by them to the assessing officer. What has also to be kept in mind is that section 17(5) permits the importer to waive this right. 22 It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Sub- section (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of being heard. To remove all doubts, Explanation 1(iii)(a) provides that the proper officer can have doubts regarding the truth or accuracy of the declared value if the goods of a comparable nature were assessed at a significantly higher value at about the same time. 25. Explanation (1)(i) to rule 12 of the Valuation Rules, however, provides that the rule only provides a mechanism and procedure for rejection of declared value and does not provide a method for determination of value and if the declared value is rejected, the value has to be determined by proceeding sequentially in accordance with rules 4 to 9. 26. In Century Metal Recycling, the Supreme Court summarized the provisions of rule 12 of the Valuation Rules and the observations are as follows : "15. The requirements of Rule 12, therefore, can be summarised as under : (a) The proper officer should have reasonable doubt as to the transactional value on account of truth or accuracy of the value declared in relation to the imported goods. (b) Proper officer must ask the importer of such goods further information which may include documents or evidence. (c) On receiving such information or in the absence of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the importers in the Appeals filed by them before the Commissioner (Appeals) that the transaction value of the imported goods alone should have been treated to be the value of the goods, as provided for under rule 3(1) of the Valuation Rules, since none of the conditions stipulated in the proviso to sub-rule (2) of rule 3 were attracted and in any case, if the declared value could not be determined under sub-rule (1) of rule 3, it was required to be determined by proceeding sequentially through rules 4 to 9. 29. Rule 3 of the Valuation Rules is, therefore, reproduced below: "Rule 3. Determination of the method of valuation.- (1) Subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of rule 10; (2) Value of imported goods under sub-rule (1) shall be accepted: Provided that - (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which - (i) are imposed or required by law or by the public authorities in India; or (ii) limit the geographical area in which the goods may be resold; or (iii) do not substantially affect the value of the goods; (b) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the value proposed by the Revenue and stated that it did not want any show cause notice or personal hearing, it was not necessary for the Revenue to establish the valuation any further as the consented value became the declared transaction value requiring no further investigation or justification. Paragraph 5 of the decision is reproduced below: "5. We have considered the contentions of both sides. We find that whatever may be the reasons, the appellant expressly gave its consent to the value proposed by Revenue and expressly stated that it did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the consented value in effect becomes the declared transaction value requiring no further investigation or justification. To allow the appellant to contest the consented value now is to put Revenue in an impossible situation as the goods are no longer available for inspection and Revenue rightly did not proceed to further collect and compile all the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 loaded value of the goods as determined in the presence of their Representative/Special Attorney and paid the duty thereon accordingly." [emphasis supplied] 33. In Guardian Plasticote Ltd., the Tribunal after placing reliance on the decision of the Tribunal in Vikas Spinners, had also observed as follows : "4. The learned Advocate also cites the decision of the Tribunal in the case of M/s. Vikas Spinners v. C.C., Lucknow - 2001 (128) E.L.T. 143 (Tri.-Del.) in support of his arguments. We find that the said decision clearly holds that enhanced value once settled and duty having been paid accordingly without protest, importer is estopped from challenging the same subsequently. It also holds that enhanced value uncontested and voluntarily accepted, and accordingly payment of duty made discharges the burden of the department to establish declared value to be incorrect. In view of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 assessable value, he observed that no reasons stand given by the Revenue for such an enhancement. There is no rejection of the transaction value and in such a scenario, the transaction value has to be adopted as the assessable value. He also observed that though no reasons stand reflected in the Revenue's assessment but the same seems to have been done on the basis of a DRI Alert dated 9-5-2011. xxxxx xxxxx xxxxx 6. As regards the second issue, we find that Commissioner (Appeals) has gone into detailed examination of the provisions of Section 14 as also the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. As rightly observed by him, for adopting the provision of Customs Valuation Rule, the transaction value is required to be rejected as incorrect value. There being no evidence to show that the importer has paid over and above than the transaction value, to the seller of the goods, there is virtually no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enhancement in a routine manner and that an importer has no choice but to sign in order to save demurrage charges. 42. It has to be noted that the two importers, Hanuman Prasad and Niraj Silk, had not made any statement that they have accepted the value of the goods proposed by the Revenue to save demurrage charges nor did they state in the letter that the value was being accepted by them under protest and they would agitate the matter in appeal. It is only in this appeal that it has been suggested that the value was accepted to save demurrage charges, perhaps prompted by the observations made by the Tribunal in Artex Textile Private Limited. 43. Learned Counsel for the Respondent also relied upon the decision of the Tribunal in Commissioner of Customs, New Delhi (ICD TKD) vs M/s Uniexcel Polychem Pvt. Ltd21. The Tribunal observed that : "4. On the merit of enhancement of value, we are in agreement with the findings in the impugned order. No det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (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 uncalled for. The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case. 48. Thus, for all the reasons above, the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. 49. When on merits it has been found that the Commissioner (Appeals) committed an error in allowing the appeals, it is not necessary to decide whether the appeals against the accepted transaction value were maintainable or not. 50. All the 36 orders passed by the Commissioner (Appeals) that have been impugned, therefore, deserve to be set aside and are, accordingly, set aside and the 36 Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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