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2024 (7) TMI 1624 - AT - CustomsUndervaluation of the export goods - challenge to Expert Panel Opinion inasmuch as it does not reveal the source for the market value - applicability of provisions of Section 14 of the Customs Act 1962 read with the Customs Valuation (Determination of Value of Export Goods) Rules 2007 to the valuation of exported rough diamonds which are not dutiable goods under the Customs Tariff Act 1975 - HELD THAT - The original order dated 14.11.2022 had referred to the comments/reports submitted by the Expert Panel Members in order to reject the declared value of export and for re-determination of the same. Both the authorities below have not furnished any reference with regard to the competency of the Expert Panel for submission of any report. Further the said reports were also not supplied to the appellants and the reference viz. number and date of such reports were also not disclosed in the respective orders. Furthermore we also find that there is no coherence between the Export Opinion obtained by the department inasmuch as the Single Expert Member had confirmed that the value stated by the appellant is approximately 40 to 45% less than the market rates; whereas the Three Expert Panel Members had confirmed that the declared value on the average are 20% less than the market value as on 17.02.2021. The said fact is evident from the respective reports inasmuch as the phrases approximately and average have been used for issuance of the certificates. In other words the Expert Panel chosen by the department were not sure about the manner of determination of the actual value for which there must have been laid down norms by the established body for the diamond trade which can be universally acceptable. Therefore the Expert Panel reports relied upon by the department cannot be hold good for rejection of the declared value of export. The department had not brought on record any evidence to show that the appellants had received towards the export proceeds any amount over and above the price indicated in their commercial invoice. On the contrary we find that the appellant had raised the invoice No.29/2020-21 dated 15.02.2021 on the overseas buyer towards sale of the impugned goods total amounting to Yuan 2, 636, 904/- which was duly received through the approved banking channel by them. On perusal of Bank Realization Advices issued by Kotak Mahindra Bank in remitting the exact invoice amount to the appellant. Thus it cannot be said that the appellant had undervalued the goods exported by them. Conclusion - i) Valuation provisions under the Customs Act apply only for levy and collection of customs duty and not otherwise. ii) xport of goods not subject to customs duty cannot be subjected to valuation reassessment confiscation or penalties under provisions linked to undervaluation for duty purposes. iii) Expert valuation reports must be transparent based on established norms and shared with the affected parties to be legally valid. There are no merits in the impugned order insofar as it has upheld the adjudication order and rejected the appeal filed by the appellants. Therefore the impugned order is set aside and the appeals are allowed in favour of the appellants.
The core legal questions considered by the Tribunal in this matter include:
1. Whether the Expert Panel's valuation opinion, which indicated undervaluation of the export goods, has any legal basis and whether it can be relied upon to reject the declared FOB value of the export consignment. 2. Whether the provisions of Section 14 of the Customs Act, 1962, read with the Customs Valuation (Determination of Value of Export Goods) Rules, 2007, apply to the valuation of exported rough diamonds, which are not dutiable goods under the Customs Tariff Act, 1975. 3. Whether confiscation of the goods and imposition of penalties under Sections 113(i), 114(iii), and 114AA of the Customs Act, 1962, are sustainable in the absence of customs duty liability on the exported goods. 4. Whether the department has established any evidence of undervaluation or misdeclaration by the appellants, particularly in relation to the actual transaction value realized through export proceeds. Issue-wise Detailed Analysis 1. Legality and Reliability of the Expert Panel Valuation Opinion The legal framework relevant here includes the procedural requirements under the Customs Act for valuation and the evidentiary standards for expert opinions. The department relied on reports from an Expert Panel to conclude that the declared FOB value was undervalued by 20% to 45%. However, the Tribunal noted that the Expert Panel reports lacked disclosure of the source or methodology for determining market value, and the appellants were not furnished with copies of these reports or their references in the adjudication orders. The Court observed inconsistencies between the valuation figures given by a single expert member (40-45% undervaluation) and the three-member panel (20% undervaluation), with neither report providing definitive or authoritative conclusions. The use of qualifiers such as "approximately" and "average" in these reports indicated uncertainty and lack of precision. The Tribunal emphasized that for valuation to be accepted, it must be based on universally acceptable norms established by recognized bodies in the diamond trade, which was not demonstrated here. Consequently, the Tribunal held that the Expert Panel reports could not be deemed reliable or legally valid grounds for rejection of the declared export value. 2. Applicability of Customs Valuation Provisions to Export of Rough Diamonds Section 14 of the Customs Act and the Customs Valuation Rules, 2007, govern the determination of the transaction value of imported or exported goods for the purpose of customs duty assessment. The Tribunal examined whether these provisions apply to the export of rough diamonds. The Tribunal noted that customs duties are leviable only on goods specified in the Second Schedule to the Customs Tariff Act, 1975. Rough diamonds, classified under Chapter heading 7102, are not listed in this schedule, and thus no customs duty is payable on their export. Since valuation under Section 14 and the Rules is intended solely for levy and collection of customs duty, these provisions do not apply to goods not subject to duty. Therefore, the Tribunal concluded that rejection of the declared value and reassessment under these provisions was contrary to the statutory scheme. Similarly, confiscation and penalty provisions triggered by undervaluation under Sections 113(i), 114(iii), and 114AA could not be invoked where no duty liability existed. 3. Evidence of Undervaluation and Transaction Value Realized The Tribunal examined the evidence regarding the actual transaction value realized by the appellants. The appellants produced commercial invoices and Bank Realization Advices showing receipt of payment through approved banking channels for the declared invoice amount. No evidence was presented by the department to indicate any amount received over and above the declared value. Given this, the Tribunal found no basis to conclude that the appellants had undervalued the goods or misdeclared the value for export purposes. 4. Confiscation and Penalty Proceedings The Tribunal referred to its earlier precedent, which addressed similar issues regarding valuation and confiscation of exported rough diamonds. The prior order emphasized that:
Applying these principles, the Tribunal found the confiscation and penalties imposed were not justified. Conclusions The Tribunal concluded that the departmental actions to reject the declared value, reassess the shipping bill, confiscate the goods, and impose penalties were unsupported by the statutory framework and evidentiary record. The Expert Panel reports were unreliable and procedurally defective. The valuation provisions of the Customs Act and Rules do not apply to export of rough diamonds, which attract no customs duty. The appellants had demonstrated receipt of export proceeds corresponding to the declared value. Consequently, the confiscation and penalties were unwarranted. Significant Holdings The Tribunal's crucial legal reasoning included the following verbatim excerpts from its prior ruling, which were adopted in this case: "The scheme of the Customs Act, 1962 envisages declarations as a pre-requisite for assessment and collection of duty. Value, and valuation provisions in the Act and Rules framed thereunder, are relevant and applicable solely for achievement of this end." "The confiscation provisions do not admit to proceedings that are unrelated to the objective of the Customs Act, 1962." "It is quite clear from the findings of the original authority that an enhancement of value by customs authorities in the shipping bill or bill of entry does not carry with it the concomitant obligation to repatriate or remit the differential value from, or to, the buyer, or supplier, respectively." "There is no ban on export of diamonds and no authority is vested in the Commissioner of Customs to disallow an export in the absence of a ban. The impugned order is vitiated by arbitrary and unauthorised exercise of power." "We do not find any justifiable reason for the adjudicating authority to accept the value recommended by 'trade panel' and there is also no finding to sustain the invoking of Section 113(i) of Customs Act, 1962." The core principles established are:
Accordingly, the Tribunal set aside the impugned order confirming confiscation and penalties and allowed the appeals filed by the appellants.
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