9911796707
TMI Blog2023 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... I VERSUS M/S SODAGAR KNITWEAR [ 2018 (5) TMI 686 - CESTAT NEW DELHI] where the Tribunal has held that once the importer voluntary accepted the enhancement then he is precluded from challenging the same. This judgement of the Tribunal has been upheld by the Hon ble Apex Court in SODAGAR KNITWEAR VERSUS COMMISSIONER [ 2018 (8) TMI 1777 - SC ORDER] wherein the Hon ble Apex Court has held that we do not find any infirmity in the order passed by the CESTAT, the appeal is dismissed. The impugned order is not sustainable in law - Appeal allowed. - Mr. S. S. GARG, MEMBER (JUDICIAL) AND Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Rajeev Gupta, Shri Pawan Kumar, DR for the Appellant Shri Rajeev Agnihotri, Advocate for the Respondent ORDER These 35 Appeals have been filed by the Revenue against the common impugned order dated 19.03.2020 passed by the Commissioner of Customs, New Delhi whereby the Commissioner (Appeals) has allowed the appeals of the respondent and directed the lower authorities to re-assess the duties at declared value. 2. Briefly the facts of the present case are that the respondent imported Aluminium Scrap by filing 35 bills of entries at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Personal hearing in the said letter which is available on record of the appeal paper book. 6. Ld. DR further submits that an identical issue has been considered by the Division Bench of this Tribunal in the case of Commissioner of Customs, Delhi vs. M/s Hanuman Prasad Sons reported in 2020 (12) TMI 1092-CESTAT NEW DELHI wherein also the Commissioner has allowed the appeal of the importer and set-aside the enhancement but the Tribunal after considering all the provisions of Customs Act, 1962 relating to valuation and Valuation Rules, 2007 and the voluntary acceptance of the enhanced value by the importer, allowed the appeals of the department. 7. Ld. DR took us through the findings of the Division Bench in the case of M/s Hanuman Prasad Sons cited (supra). He submits that subsequent to the passing of the judgement in the case of M/s Hanuman Prasad Sons cited (supra), another Division Bench of the Principal Bench, New Delhi of the Tribunal in the case of M/s Sumridhi Aluminium (P) Ltd. vs. Commissioner of Customs, New Delhi vide Final Order No. 51191-51282 of 2023 dated 13.09.2023 again examined all the rules relating to valuation and by relying upon the decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration, the transaction value can be rejected and taking evidences into consideration, assessable value can be arrived at; that in the instant case such exercise has not been done. d) That the assessing officer has not doubted their documents like invoice, Bill of lading etc. The declared value can be rejected only in terms of Rule 12 of CVR 2007 as per Hon'ble Supreme Court Judgement in case of Century Metals (2019(367)ELT 3(SC)]. 10. Ld. Counsel further submits that the department did not follow the procedure contemplated under Rule 12 of the valuation rules to reject the transaction value declared by the importer. He also submits that NIDB data cannot be the sole basis to reject the transaction value without any cogent reasons. He also submits that the burden of proof lies upon the department to prove the charge of under valuation, which burden has not been discharged in the present case. 11. After considering the submissions of both the parties and perusal of material on record, we find that on identical facts, this Tribunal in the case of M/s Hanuman Prasad Sons cited (supra) has examined the provisions relating to valuation as prescribed in the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 USD per kg. for Niraj Silk. The importers also specifically stated that they did not want to avail of the right conferred on them under section 124 of the Customs Act and, therefore, they did not want any show cause notice to be issued to them or personal hearing to be provided to them. The importers also specifically stated that they did not want a speaking order to be passed on the Bills of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance in writing. 24. It is no doubt true that the value of the imported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the rules to be made in this behalf. The Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper officer has to record reasons in writing which have to be communicated when requested. (h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 16. Proper officer can therefore reject the declared transactional value based on certain reasons to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules . What is meant by the expression grounds for doubting the truth or accuracy of the value declared has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the reason to doubt exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared. 27. It is non-consideration of the factual position emerging from the statements made by Hanuman Prasad and Niraj Silk that led the Commissioner (Appeals) to believe that the declared value could be rejected on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declared value in the letters submitted by them to the assessing authority, itself implies that the importers had not accepted the value declared by them in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the importers had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules. This is for the reason that it is only when the value of the imported goods cannot be determined under rule 3(1) for the reason that the declared value has been rejected under sub rule 2, that the value of the imported goods is required to be determined by proceeding sequentially through rule 4 to 9. As noticed above, the importers had accepted the enhanced value and there was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially. 31. In this connection, it would be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs Commissioner of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be possible. The case of Eicher Tractors v. Union of India (supra) cited by the appellant is not relevant here as in that case there was no evidence that the assessee had consented to enhancement of value. [emphasis supplied] 32. In Vikas Spinners, the Tribunal dealing with a similar situation, observed as under : 7. In our view in the present appeal, the question of loading of the value of the goods cannot at all be legally agitated by the appellants . Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing position emerges from the aforesaid decisions of the Tribunal: (i) When an importer consents to the enhancement of value, it becomes unnecessary for the revenue to establish the valuation as the consented value, in effect, becomes the declared transaction value requiring no further investigation; (ii) When an importer accepts the loaded value of the goods without any protest or objection, the importer cannot be permitted to deny its correctness; and (iii) The burden of the Department to establish the declared value to be in correct is discharged if the enhanced value is voluntarily accepted. 36. Learned Counsel appearing for 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 ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to a speaking order. 39. This decision of the Tribunal in Maruti Fabric Impex was followed in Hanuman Prasad. 40. The next decision relied upon by learned Counsel for the Respondent is Artex Textile Private Limited. The Tribunal observed that: 2 . The brief facts are that the respondent importer of polyester knitted fabrics were filing Bill of Entry from time to time at ICD Sonepat on the basis of self assessment of duty on the declared transaction value. The Bills of Entry were assessed by Assistant/Deputy Commissioner of Customs, by enhancing the value over and above the declared value. However, no speaking order was passed giving 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods proposed by the Revenue in writing or that the importers had waived their right to a speaking order. In fact, it was the DRI alert that formed the basis of enhancement of value. 45. The Supreme Court observed in Eicher Tractors Ltd., which decision has also been relied upon by the learned counsel for the Respondent, that it is only when the transaction value under rule 4 of the Valuation Rules is rejected that the transaction value is required to be determined by proceeding sequentially through rules 5 to 8. The decision of the Supreme Court in Century Metal Recycling also holds that if 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
