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TMI Blog2024 (8) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Coordinate Bench of the Tribunal, in a similar set of same facts of the case of Ajay Exports [ 2023 (6) TMI 1090 - CESTAT MUMBAI] by determining the basic issues of valuation imported poppy seeds from Turkey in terms of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and have held that rejection of declared value is without authority of law; and the confiscation of imported goods, imposition of redemption fine and penalties have also been set aside. In view of the decision taken by the Co-ordinate Bench of the Tribunal, it is opined that a different stand on the matters cannot be taken in involving similar set of facts and circumstances. The impugned order dated 20.01.2014 passed by the Commissioner of Customs (Import), Mumbai is not legally sustainable and the therefore the same is set aside - appeal allowed. - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. M.M. PARTHIBAN, MEMBER (TECHNICAL) Shri Kamal Bulchandani, Advocate for the Appellant Shri Ram Kumar, Authorized Representative for the Respondent ORDER The appeal has been filed by M/s Viral International, Pune (herein referred to as the appellants for short) against the Order-in-Original CAO No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.03.2007 of Embassy of India, Moscow addressed to DG, EU and External Relations and another letter of the First Secretary (Trade), Embassy of India, Moscow addressed to ADG, DRI, Delhi, such documents including the charts have not been certified; several entries in the documents showing as price in $ and quantity in Kg. were blackout, making the entries not visible. Further translation of the documents in Turkish or other language have not been provided by the customs authorities; there is no other reliable data on the basis of which the transaction value was rejected and enhancement in the price of imported goods was adopted by the department; demand of duty was solely dependent on two invoices of 2004 as received in the documents of Turkish Customs. Hence, he submitted that the impugned order any redetermination of the price of imported goods and demand of differential duty is not legally sustainable. 3.2 Learned Advocate further submits that in identical matter, the Coordinate Bench of this Tribunal in the case of Ajay Exports Vs. Commissioner of Customs (Import), Mumbai 2023 (12) Centax 188 (Tri.- Bom) and Ajay Exports and Ors. Vs. Commissioner of Customs (Import), Mumbai and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption fine and penalties have also been set aside. 8.1 We find that this issue has already been decided by the Co-ordinate Bench of this Tribunal in the case of Ajay Exports (supra), holding that demand of differential duty, imposition of fine and penalty etc. is unsustainable in law. The relevant paragraphs of the said order is extracted and given below: 5 . Clearly, the disputes straddle two valuation regimes that not only was manifested by substitution of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 with Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 but also in the schematic redesign of section 14 of Customs Act, 1962 with effect from 10 October 2007. The earlier Rules had, themselves, been put through two significant changes by insertion of rule 10A with effect 19 February 1998 and insertion of qualifying conditions in proviso to rule 4(2) for acceptance of price paid or payable as 'transaction value' for the purpose of section 14 which was, itself, intended as the norm originally in July 1988. The difference between the two regimes was the mandate of affinity with conceptual framework for adoption in assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back option in the Rules. 8 . It was argued by Learned Senior Counsel that the sequential application of methods prescribed in Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 requires reasoned elaboration for discard of the method or all methods preceding the one resorted to which the orders of the lower authorities are found to be deficient in. It was also submitted that, by adopting the method prescribed in rule 7, the assessable value of Rs. 190/- per kilograms thereby would have precluded further proceedings in the matter. It was also submitted that non-recourse to values available in data base maintained by customs authorities, as must inevitably exist considering the volume of trading in the impugned goods, solely on the ground of unreliability attributable to the Indo-Turkish trade being controlled by cartels is not borne by any facts on record or earlier decisions in disputes engendered by import of such goods in the past. Reliance was also placed on the decisions of the Tribunal in SK Dhawan v. Commissioner of Customs (Import), Mumbai [2016 (344) ELT 436 (Tri. - Mumbai)], in Commissioner of Customs (Import), Nhava Sheva v. Alfa Textiles [2016 (331 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Customs Valuation (Determination of Value of the Imported Goods) Rules, 2007 and all others to the earlier period. In the light of the allegations and the manner in which assessment has proceeded, the distinguishment between the two regimes is of relevance only upon ascertaining that authority to venture upon the several methods of valuation - transactional or determinative - sequentially did vest in the authority empowered to finalize the provisional assessments. The substitution of the first set of show cause notices of 18th February 2008 by the fresh set of notices dated 12th March 2008, and thereby proposing rejection of the declared value solely on the ground of alleged existence of a cartel operating in Turkey for supply of 'white poppy seeds' of 99% purity, is ample demonstration of intent, though not spelt out categorically, to rely upon the first of the conditions specified in proviso to rule 4(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, viz. ' . (a) the sale is in the ordinary course of trade under fully competitive conditions; ..' but preferring to take shelter behind that bulwark of seemingly unencumbered aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contours of legislative intent set out in rule 4(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. That the reaction to the judgement was expansion of the special circumstances reinforces the original legislative intent of rule 10A of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 as a statutory process by which dialogue between importer and customs authority is set in motion for the purpose of arriving at the assessable value. The limiting factors in rule 4(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 must continue to be perceived as the sole validation for venturing upon rule 10A of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. Any other proposition would only have the effect of empowerment without corresponding accountability. 13 . Even in the amended context of rule 4(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 that applies to most of the impugned consignments, it does not suffice for those limiting factors to be drawn upon without proffering evidence of existence of such defined circumstances; mere whims or fancies cannot ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest of an importer, the proper officer, shall intimate the importer in writing, the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). provides for a procedure which has to be complied with. In this case, procedure as prescribed vide Rule 10A(1) has not been complied with. Therefore, resort to Rule 10A cannot be upheld. (b) The Tribunal in the case of Venus Insulation Products Manufacturing Co. v. CC, Goa [2002 (143) ELT 364 (Tri. -Del)] have held in Para 4.4 of this decision, as regards the application of Rule 10A and other rules especially the provisions of Rule 4, as follows : - 4.4 We further find that the adjudicating authority has grossly misunderstood the legal provisions relating to determination of the value of the goods. He has invoked Rule 10A, which is not a substantive provision governing determination of value in the sequential scheme laid down under the Valuation Rules. That rule is a procedural provision, which is meant to act as an aid to determining as to whether it is clause (i) or clause (ii) of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tin and Public Ledger, UK are not found to be inapplicable, there was no reason for the Commissioner to have resorted to Rule 10A or/and rejection of the transaction value in the facts of this case, . Infact there is no material to exit from the transaction value as depicted by the documents of the importers in the facts of this case. The procedure prescribed for such an exit permissible by Rule 10A has not been followed. Therefore, the orders of the Commissioner coming to a conclusion as regards misdeclaration of value and consequently liability for confiscation under section 111(m) cannot be upheld .' 15 . The specific discarding of resort to 'Public Ledger' prices for reason of discord with the prescriptions of the Rules framed under section 14 of Customs Act, 1962 is no less applicable here. There is no allegation that the prices declared do not reflect the contractual consideration. There is no allegation of misdeclaration of description of the goods. The conditions precedent to invoking of rule 10A of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 or rule 12 of 4(2) of Customs Valuation (Determination of Value of Imported Goods) Rules, 20 ..... 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