9911796707
TMI Blog2024 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... l have the powers to raise doubts about the truth or accuracy of the declared value. Payment of additional consideration is not even a ground stated therein. The finding recorded by the Commissioner (Appeals), that in the absence of any additional consideration having been paid by the importers to the sellers, the transaction value could not have been rejected is not in conformity with the provisions of the Customs Act or the Valuation Rules. Even if no additional consideration is paid, still the proper officer can proceed to reject the vale under rule 12 of the Valuation Rules, if he has a reasonable doubt that the declared value does not represent the transaction value. Doubts can be raised on the truth or accuracy of the declared value based on certain reason which may include the six reasons mentioned in Explanation (iii) of rule 12 of the Valuation Rules. One such reason is where identical or similar goods imported at or about the same time in comparable quantities in comparable commercial transaction were assessed at a significantly higher value. Commissioner (Appeals) has also placed reliance upon the decision of the Supreme Court in Motor Industries [ 2008 (4) TMI 436 - SUP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) has not examined this issue at all, it would be appropriate to remit the matter to the Deputy Commissioner for re-determining the value of the goods in accordance with the provisions of the Customs Act and the Valuation Rules. - C/51584/2024, C/51617/2024, C/51650/2024, C/51683/2024, C/51585/2024, C/51618/2024, C/51651/2024, C/51684/2024, C/51586/2024, C/51619/2024, C/51652/2024, C/51685/2024, C/51587/2024, C/51620/2024, C/51653/2024, C/51686/2024, C/51588/2024, C/51621/2024, C/51654/2024, C/51687/2024, C/51589/2024, C/51622/2024, C/51655/2024, C/51688/2024, C/51590/2024, C/51623/2024, C/51656/2024, C/51689/2024, C/51591/2024, C/51624/2024, C/51657/2024, C/51690/2024, C/51592/2024, C/51625/2024, C/51658/2024, C/51691/2024, C/51593/2024, C/51626/2024, C/51659/2024, C/51692/2024, C/51594/2024, C/51627/2024, C/51660/2024, C/51693/2024, C/51595/2024, C/51628/2024, C/51661/2024, C/51694/2024, C/51596/2024, C/51629/2024, C/51662/2024, C/51695/2024, C/51597/2024, C/51630/2024, C/51663/2024, C/51696/2024, C/51598/2024, C/51631/2024, C/51664/2024, C/51697/2024, C/51599/2024, C/51632/2024, C/51665/2024, C/51698/2024, C/51600/2024, C/51633/2024, C/51666/2024, C/51699/2024, C/51601/2024, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/2024, C/51568/2024, C/51446/2024, C/51487/2024, C/51528/2024, C/51569/2024, C/51447/2024, C/51488/2024, C/51529/2024, C/51570/2024, C/51448/2024, C/51489/2024, C/51530/2024, C/51571/2024, C/51449/2024, C/51490/2024, C/51531/2024, C/51572/2024, C/51450/2024, C/51491/2024, C/51532/2024, C/51573/2024, C/51451/2024, C/51492/2024, C/51533/2024, C/51574/2024, C/51452/2024, C/51493/2024, C/51534/2024, C/51575/2024, C/51453/2024, C/51494/2024, C/51535/2024, C/51576/2024, C/51454/2024, C/51495/2024, C/51536/2024, C/51577/2024, C/51455/2024, C/51496/2024, C/51537/2024, C/51578/2024, C/51456/2024, C/51497/2024, C/51538/2024, C/51579/2024, C/51457/2024, C/51498/2024, C/51539/2024, C/51580/2024, C/51458/2024, C/51499/2024, C/51540/2024, C/51581/2024, C/51459/2024, C/51500/2024, C/51541/2024, C/51582/2024, C/51460/2024, C/51501/2024, C/51542/2024, C/51583/2024, C/51461/2024, C/51502/2024, C/51543/2024, C/51462/2024, C/51503/2024, C/51544/2024, C/51463/2024, C/51504/2024, C/51545/2024, C/51716/2024, C/51727/2024, C/51738/2024, C/51749/2024, C/51717/2024, C/51728/2024, C/51739/2024, C/51750/2024, C/51718/2024, C/51729/2024, C/51740/2024, C/51751/2024, C/51719/2024, C/51730/2024, C/51741/2024, C/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) CMR Green Technologies Ltd. [CMR Green]; and (iv) Century Metal Recycling Pvt. Ltd. [Century Metal] imported aluminium scrap of various grades and filed Bills of Entry for clearing the consignment on the basis of self-assessment of duty on the transaction value. The Assessing Officer doubted the correctness of the value declared by the respondents in the Bills of Entry. 4. At the request of CMR Nikkei, the Bills of Entry were provisionally assessed and necessary bonds with bank guarantees were submitted. To finalize the provisional assessment, the department issued a show cause notice dated 28.12.2020 to CMR Nikkie. 5. The show cause notice mentions that the said importer had filed various Bills of Entry as detailed in Annexure A to the show cause notice for seeking clearance of goods declared as aluminium scrap namely Zorba , Twitch , Tense , Troma , Taint Tabor Tense/Taint Tabor . The show cause notice then proceeds to define the aforesaid categories of aluminium scrap and gives three reasons as to why the price of aluminium scrap, mentioned in the Bills of Entry appeared to be on the lower side. The three reasons are: 4(A)***** On examination of the value declared by the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raneous imports of Aluminium scrap at higher transaction value have taken place on the basis of which you are proposing to enhance our transaction value. We carefully scrutinized on ICE gate portal and no such instance of any contemporaneous import at higher transaction value could be find therein as such your contention that you are proposing to enhance the transaction value in our case on the basis of same or similar goods from the same country of origin is factually incorrect and the same is therefore denied by us. 2. So far as the DGOV alert dated 15.11.2018 is concerned, it is pertinent to say that no minimum assessable price for Aluminium scrap has been fixed in any DGOV alert. The reason seems to be obvious that Aluminium scrap by its very nature is not of any standard quality or specification and the price depends on Market Prices prevailing form time to time. Hence assessment of duty can be made only on the basis of transaction value of aluminium scrap in any given case. Therefore, Rule 4, 5 or 9 of Customs valuation rules cannot be relevant for fixation of the assessable value of scrap........ 3. It follows therefore, that even if there are cases of other contemporaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that declared prices involves an abnormal decrease/reduction from the ordinary competitive prices, thus, there is reason to doubt the truth and accuracy of the declared value and the same is liable to be rejected. 7. In view of the above, it appears that the transaction value declared by the importer is not true and fair and hence, cannot be determined under the provisions of sub-rule (1) of rule (3) of the said Rules , being the transaction value liable to be rejected under Rule 12 of Customs Valuation Rules- 2007. Further, it appears that the value of the impugned goods is required to be re-determined proceeding sequentially through Rules 4 to 9 of the said Valuation rules. The importer has earlier highlighted the fact and also it is a fact that the Aluminum scrap by its very nature is not of any standard quality or specification i.e. in another words all the consignments may not be identical or similar in terms of Rule 4 or Rule 5 of Customs (Valuation of Imported Goods) Rules-2007 as the consignments may have difference in composition and also for having different countries of origin. Therefore it appears that value may not be determined under Rule 4 and Rule 5 supra. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The data pertaining to contemporaneous imports has been compiled in Column T to Column ZA of the Annexure- A enclosed to this notice. Veracity of said data may be checked at URL: https://enquiry.icegate.gov.in/enquiryatices/b eTrackices. 10. Therefore, it appears that the above referred Bills of Entries need to be re-assessed under the provisions of Section 17(4) of the Customs Act 1962 by enhancing the declared price mentioned in Column K (in USD per Kg.) of the Annexure A to the extent of price of contemporaneous imports at or about the same time as the goods being valued, irrespective of country of origin, as mentioned against each Bill of Entry in Column T (in USD per Kg.) of the Annexure- A , under Rule 9 of the said valuation Rules read with Section 14 of the Customs Act-1962. (emphasis supplied) 10. The show cause notice, therefore, calls upon CMR Nikkie to show cause why: (i) The self assessed value of imported goods, in respect of subject Bills of Entries, mentioned in Column K (in US$) column I (in Indian Rupee) of Annexure- A should not be rejected under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not contain any particulars about actual transaction value of any other contemporaneous import of the same or similar good in comparable quantity at or about the same time of import from the same country of Origin. Hence, the comparison of contemporaneous import price of other goods is irrelevant as no such particulars have been confronted by you to us. 13. The importer also submitted written submissions and additional written submissions basically making reference to the two decisions of the Supreme Court in CCE ST, Noida vs. Sanjivani Non-ferrous Trading Pvt. Ltd. [2019 (365) E.L.T. 3 (S.C.)] and M/s Century Metal Recycling Pvt. Ltd. vs. Union of India [2019 (367) E.L.T. 3 (S.C.)] . 14. The Deputy Commissioner passed a detailed speaking order dated 26.03.2021. The Deputy Commissioner noticed that CMR Nikkie had placed reliance upon two decisions of the Supreme Court in Sanjivani Non-ferrous Trading and Century Metal Recycling but found them to be not applicable to the facts of the present case. The Deputy Commissioner pointed out that the DGoV Alert dated 15.11.2018 had been used only as a reference to test the truthfulness and accuracy of the value declared by the importer. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of such imported goods cannot be determined under the provisions of sub-rule (1) of Rule 3 of the Customs Valuation (Determination of the Value of Imported Goods) Rules, 2007 ..Therefore, it is held that that the declared prices involves an abnormal decrease/reduction from the ordinary competitive prices, thus, there has been reason to doubt the truth and accuracy of the declared value and the same is liable to be rejected under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962. (emphasis supplied) 15. After having rejected the transaction value shown in the Bills of Entry under rule 12(1) of the Valuation Rules, the Deputy Commissioner re-determined the value under rule 9 of the Valuation Rules after holding that rules 4 to 8 of the valuation would not be applicable. The observations made in this regard are contained in paragraphs 23, 24 and 25 of the order and the same are reproduced below : 23. In view of the above, I hold that the transaction value declared by the importer is not true and fair and hence, cannot be determined under the provisions of sub-rule (1) of rule (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in Column T to Column ZA of the Annexure- A and the importer has already been informed that the veracity of the said data may be checked at URL: https://enquiry.icegate.gov.in/enquiryatices/beTrack ices. Therefore, the above referred Bills of Entries are being accordingly re-assessed under the provisions of Section 17(4) of the Customs Act, 1962 and the provisional assessment is being finalized in accordance with the provisions of Section 18(2) of the Customs Act, 1962 by enhancing the declared price mentioned in Column K (in USD per Kg.) of the Annexure A to the extent of price of contemporaneous imports at or about the same time as the goods being valued, irrespective of country of origin, as mentioned against each Bill of Entry in Column T (in USD per Kg.) of the Annexure- A , under the provisions of Rule 9 of the Customs Valuation (Determination of the Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962. (emphasis supplied) 16. Similar orders have been passed by the Deputy Commissioner in the remaining matters of Sanjivani, CMR Green and Century Metal. 17. The order passed by the Deputy Commissioner was assailed by the department before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso contrary to the dictate of Section 14 of the Customs Act and Customs Valuation Rules as has been held by the Hon ble Supreme Court in the case of Century Metal Recycling Pvt. Ltd. [2019 (367) E.L.T. 3 (S.C.)]***** 7.10 Further, LME prices of metals also cannot be the basis for determination of value of scrap thereof not only for being contrary to the provisions of Valuation Rules but also contrary to law propounded in various judgments. ***** 7.11 I observe that the adjudicating authority has held that the value of the impugned goods is required to be re-determined on the basis of data pertaining to contemporaneous import of goods of the same class or kind in terms of Rule 9 of the Valuation Rules, observing that the difference in composition or origin may not have any material bearing on the value of the impugned Aluminium Scrap. I find that in the case of Century Metal Recycling Pvt. Ltd. (Supra), the Hon ble Supreme Court has also decided the issue of enhancement of value on the basis of contemporaneous imports***** 7.12 From the above, it is also coming out that aluminium scrap is not a homogeneous commodity and it is very difficult to find any identical/similar goods impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer paid any amount over and above the invoice value and the invoice value was vitiated by non-commercial considerations. This finding is not justified. The entire approach of the Commissioner (Appeals) in holding that the rejection of the transaction value is not justified nor the re-determination of the assessable value is justified is contrary to the well settled principles contained in section 14 of the Customs Act and the Valuation Rules. 20. Learned counsel for the respondents, however, supported the impugned order passed by the Commissioner (Appeals) and made the following submissions: (i) The transaction value declared by the respondents in the Bills of Entry was required to be accepted in terms of section 14 of the Customs Act since the department failed to bring on record any evidence that there was additional flow of consideration to the foreign supplier from the importers so as to raise any dispute with regard to the price at which the goods were imported. Even the show cause notice did not allege that the importer had mis-declared the price or description of the goods; (ii) The rejection of the transaction value by the Deputy Commissioner under rule 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 46 , or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seller, unless an appropriate adjustment can be made in accordance with the provisions of rule 10 of these rules; and (d) the buyer and seller are not related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule (3) below: (3) ***** (4) If the value cannot be determined under the provisions of sub-rule (1), the value shall be determined by proceeding sequentially through rule 4 to 9. 27. Rule 4 deals with transaction value of identical goods and it is reproduced below: 4. Transaction value of identical goods .- (1)(a) Subject to the provisions of rule 3, the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about the same time as the goods being valued; Provided that such transaction value shall not be the value of the goods provisionally assessed under section 18 of the Customs Act, 1962. (b) In applying this rule, the transaction value of identical goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued shall be used to determine the value of imported goods. (c) Where no sale r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the provisions of rule 3, if the goods being valued or identical or similar imported goods are sold in India, in the condition as imported at or about the time at which the declaration for determination of value is presented, the value of imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the greatest aggregate quantity to persons who are not related to the sellers in India, subject to the following deductions : - (i) either the commission usually paid or agreed to be paid or the additions usually made for profits and general expenses in connection with sales in India of imported goods of the same class or kind; (ii) the usual costs of transport and insurance and associated costs incurred within India; (iii) the customs duties and other taxes payable in India by reason of importation or sale of the goods. (2) If neither the imported goods nor identical nor similar imported goods are sold at or about the same time of importation of the goods being valued, the value of imported goods shall, subject otherwise to the provisions of sub-rule (1), be based on the unit price at which the imported goods or identic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on other than computed values which have been determined for identical or similar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values. 33. Rule 10 deals with costs and services. 34. Rule 12 deals with rejection of the declared value and it is reproduced below: Rule 12. Rejection of declared value. - (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule(1) of rule 3. (2) At the request 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry of exportation of the goods being valued could be the basis for customs valuation; customs values of identical imported goods already determined under the provisions of rules 7 and 8 could be used. (b) Similar goods- The requirement that the similar goods should be imported at or about the same time as the goods being valued could be flexibly interpreted; similar imported goods produced in a country other than the country of exportation of the goods being valued could be the basis for customs valuation; customs values of similar imported goods already determined under the provisions of rules 7 and 8 could be used. (c) Deductive method.- The requirement that the goods shall have been sold in the condition as imported in rule 7(1) could be flexibly interpreted; the ninety days requirement could be administered flexibly. 36. It is seen from the aforesaid, that sub-rule (1) of rule 3 provides that subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with rule 10. Sub-rule (4) of rule 3 provides that if the value cannot be determined under sub-rule (1), the value shall be determined sequentially through rules 4 to 9. Rule 12 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) The value declared, when compared to the DGoV Alert dated 15.11.2018, was on the lower side; (ii) The difference between the value declared in the Bills of Entry and the LME price was quite high; and (iii) The NIDB data of contemporaneous import at about the same time indicated that the value declared was significantly lower. 39. Accordingly, in terms of section 17(3) of the Customs Act and rule 12(1) of the Valuation Rules, a letter dated 01.10.2020 was issued to CMR Nikkie to submit any further information, including documents or any other evidence to justify the value declared in the Bills of Entry. A reply dated 06.10.2020 was furnished by CMR Nikkie denying that any other contemporaneous import of aluminium scrap at higher transaction value had taken place. It was also stated that no minimum assessable price for aluminium scrap has been fixed in the DGoV Alert dated 15.11.2018 and in any case such assessment of duty can be made only on the basis of transaction value of aluminium scrap. Therefore, rules 4,5 or 9 of the Valuation Rules would not be relevant. 40. The proper officer still had a reasonable doubt about the truth and accuracy of the value declared and, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar . The various categories of aluminium scrap involved in these appeals are Zorba , Twitch , Tense , Troma , Taint Tabor Tense/Taint Tabor . The Deputy Commissioner then noticed that London Metal Exchange is the largest and the most reputed metal exchange of the world and that official metal prices are established daily from the bid and offer prices discovered during the course of trading. The Deputy Commissioner also noticed that LME official settlement prices are widely used as bench mark in physical metal contracts all over the world and are also relevant for determining the price of aluminium after allowing gap/discount according to the particular code/grade of the aluminium scrap as specified by the Institute of Scrap Re-cycling Industries. 45. The Deputy Commissioner then examined the proposed grounds for rejection of the declared value marked in the show cause notice as also the reply submitted by the importer; the decisions on which reliance was placed by the importer; and the provisions of the Customs Act as also the Valuation Rules and ultimately held that though it is correct that the value declared by the importer cannot be rejected only on the basis of alerts/circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h adopted by the Deputy Commissioner was, therefore, found to be not only contrary to the provisions of section 14 of the Customs and the Valuations Rules, but also contrary to the views expressed by the Supreme Court in Motor Industries Company Ltd. vs. Commissioner of Customs [2009 (244) ELT 4 (S.C.)] . The Commissioner (Appeals), therefore, held that the order of the Deputy Commissioner rejecting the transaction value could not be sustained. 48. Learned authorized representative appearing for the department has challenged this finding recorded by the Commissioner (Appeals). The submission that has been advanced is that the Deputy Commissioner had meticulously examined and followed the provisions of the Customs Act and the Valuation Rules for finding out whether there were reasons to doubt the correctness of the value declared by the importers in the Bills of Entry. Learned authorized representative submitted that good and cogent reasons had been given by the Deputy Commissioner for rejecting the transaction value, but the Commissioner (Appeals) without specifically dealing with the findings recorded by the Deputy Commissioner has, in a cursory manner, set aside this finding reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of aluminium scrap, it provides a computation of reference price in terms of DGoV Circular and also gives particulars of contemporaneous import as per the NIDB data. It also gives the country of origin and the self-assessed rate as also the rates proposed to be re-determined. 54. All these facts have been taken into consideration by the Deputy Commissioner. The Deputy Commissioner noticed that the DGoV alert was used only as a reference to test the truthfulness and accuracy of the value declared by the importer. At the stage of rejection of the transaction value, the Deputy Commissioner was not required to determine the actual value, for which a separate exercise is undertaken, after the value declared in the Bills of Entry is rejected. 55. Learned counsel appearing for the respondents, however, submitted that the NIDB data cannot form the basis for rejection of the transaction value under rule 12 of the Valuation Rules and in this connection placed reliance upon the decision of the Tribunal in Atlantis Trading Company vs. Commissioner of Customs, Tuticorin [2024 (388) ELT 526 (Tri.-Chennai)]. The portion on which reliance has been placed by the learned counsel is reproduced below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either made out justifying re-determination of the same. We find that the decisions/orders relied upon by the appellant support our above view, and hence, we hold that the adjudicating authority was clearly in error in rejecting the declared value and then re-determining the same; and hence, the impugned order is clearly unsustainable for the above reasons. Hence, we set aside the impugned order. (emphasis supplied) 56. This decision of the Tribunal in Atlantis Trading holds that the NIDB data cannot be the sole basis for rejection of the transaction value. In the present matter, as noticed above, three reasons were made known to the importer for rejection of the value and adequate opportunity had been provided to the importer to respond, but the Deputy Commissioner was not satisfied with the reply given by the importer. Annexure A to the show cause notice categorizes the imported aluminium scrap into various categories. The importer did not deny any of the particulars given in Annexure A to the show cause notice and only made a general statement that there was no instance of any contemporaneous import of similar goods in comparable quantity from the same country of origin at highe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Supreme Court in Commissioner of Customs, Calcutta vs. South India Television (P) Ltd. [2007 (214) 3 (SC)]. Paragraph 6 of the decision is reproduced below: 6. . .However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14(1A) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Under-valuation has to be proved. If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege under-valuation, it must make de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the sellers, the transaction value could not have been rejected is not in conformity with the provisions of the Customs Act or the Valuation Rules. 63. Even if no additional consideration is paid, still the proper officer can proceed to reject the vale under rule 12 of the Valuation Rules, if he has a reasonable doubt that the declared value does not represent the transaction value. Doubts can be raised on the truth or accuracy of the declared value based on certain reason which may include the six reasons mentioned in Explanation (iii) of rule 12 of the Valuation Rules. One such reason is where identical or similar goods imported at or about the same time in comparable quantities in comparable commercial transaction were assessed at a significantly higher value. 64. The Commissioner (Appeals) has also relied upon the decision of the Tribunal in Marble Agencies. This decision merely holds that the transaction value can be rejected only on the basis of tangible evidence. The present matter is not a case where there is no evidence. This decision, therefore, does not help the respondents. 65. The Commissioner (Appeals) has also placed reliance upon the decision of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Order in the given factual matrix. Declared valuation can be rejected based upon the evidence which qualifies and meets the criteria of certain reasons . Besides the opinion formed must be reasonable. Reference to foreign journals for the price quoted in exchanges etc., to find out the correct international price of concerned goods would be relevant but reliance can be placed on such material only when the adjudicating authority had conducted enquiries and ascertained details with reference to the goods imported which are identical or similar and certain reasons exists and justifies detailed investigation. These reasons are to be recorded and if requested disclosed/ communicated to the importer. Valuation alerts could be relied upon for default valuation computation under the Rules. (See Varsha Plastic Pvt. Ltd. vs. Union of India (2009) 3 SCC 365). 26. We would also like to clarify that we have not issued any general or omnibus direction that the transaction value declared in the bill of entries should invariably be accepted in all cases and/or that in all cases where imports of aluminium scrap are involved. The matter has to be examined on a case to case basis, the evidence be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retative Note to rule 9 specified in the Schedule to the Valuation Rules would be applicable. 74. The Deputy Commissioner examined sequentially whether the value could be determined under rules 4,5,6,7 or 8 of the Valuation Rules. After holding that it could not be determined under rules 4 to 8, the Deputy Commissioner proceeded to determine it under rule 9 of the Valuation Rules. In this connection, the Deputy Commissioner examined the provisions of rule 9 which deals with residual method for determining the value and provides that the value shall be determined using reasonable means consistent with the principles and general provisions of the rules and on the basis of data available in India. The Deputy Commissioner also considered Note to rule 9 of the interpretative Notes contained in the Schedule to the Valuation Rules. The Deputy Commissioner then re-determined the value on the basis of accepted transaction value of aluminium scrap of category Zorba , Twitch , Tense , Troma , Taint Tabor Tense/Taint Tabor on the basis of contemporaneous imports made at about the same time, irrespective of the country of origin. The findings recorded by the Deputy Commissioner are again reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized representative pointed out that the Deputy Commissioner was justified in holding that the rules 4 to 8 of the Valuation Rules would not be applicable and the only method by which re-determination of the value could be undertaken was under rule 9 of the Valuation Rules. Learned authorized representative also pointed out that the Note to rule 9 contained in the Interpretative Notes was correctly applied by the Deputy Commissioner for re-determining the value. 77. Learned counsel appearing for the respondents, however, contended that the Commissioner (Appeals) was justified in holding that the re-determination of the value had not been done in accordance with the provisions of the Valuation Rules. Learned counsel also pointed out that in the fourth set of appeals pertaining to CMR Nikkie bearing Customs Appeal No. 51942 of 2022, Customs Appeal No. 51943 of 2022 and Customs Appeal No. 51944 of 2022, the Deputy Commissioner relied upon rule 5 and not rule 9 of the Valuation Rules as was done in the other appeals for re-determining the assessable value, which rule is not applicable. 78. The submissions advanced by the learned authorized representative appearing for the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined by the Deputy Commissioner after comparing the value with the respective category. There is no dispute with regard to the figures mentioned in Annexure A to the show cause notice because at no stage the importers challenged the figures, despite time having been given. 82. The Deputy Commissioner has not re-determined the value on the basis of DGoV Circular or the LME prices, but has determined it on the basis of NIDB data of the various categories of aluminium scrap pertaining to contemporaneous imports at or about the same time. These data contained in Annexure A to the show cause notice were made known to the importers. The importers did not produce any data relating to contemporaneous imports at or about the same time. The decisions on which reliance has been placed by the Commissioner (Appeals) or by the learned counsel appearing for the respondents, therefore, do not come to the aid of the importers. 83. There is, therefore, no error in the order passed by the Deputy Commissioner re-determining the value of the imported goods. The order passed by the Commissioner (Appeals) in 359 appeals setting aside the order passed by the Deputy Commissioner would, therefore, have ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
