2025 (6) TMI 1899 - AT - Customs

Valuation of imported goods - diagnostic kits (HIV-VL Test Kits) - rejection of declared value - redetermination of value - period from 16.08.2016 to 20.04.2021 - eligibility of exemption on import of HIV-1 viral load test kits - exemption from BCD and CVD and lower rate IGST. Eligibility of Exemption Benefit to HIV-1 Viral Load Test Kits - exemption from BCD and CVD and lower rate IGST denied merely because such exemption is restricted only to diagnostic kits for detection of HIV antibodies and not for detection of HIV-viral load - HELD THAT - It is correct that the Notification (cus.) dated 17.03.2012 and Notification (cus.) dated 30.06.2017 at Serial No s. 148 and 167 refer to diagnostic test kits specified in List 4 and List 4 mentions diagnostic kits for detection of HIV antibodies and what is imported by the appellant is HIV- viral load test kits but the issue that arises for consideration is whether these entries should be interpreted in a restricted sense or in a broad manner so as to include kits working on technologically advanced methodology. It is not in dispute that the kit imported by the appellant also detects HIV and is based on an advanced technology. When the intention of the Exemption Notification was to grant exemption to diagnostic kits for HIV antibodies there is no good reason why the test kits imported by the appellant for detection of HIV should be denied exemption. In Mother Superior 2021 (3) TMI 93 - SUPREME COURT the Supreme Court observed that there was a line of authority which stated that even in tax statues an exemption provision should be liberally construed in terms of the object sought to be achieved and if such a provision grants incentive for promoting economic growth or otherwise has some beneficial reason behind it then the legislative intent is not to burden the subject with tax. The Supreme Court also noticed that constitution bench judgment of the Supreme Court in Dilip Kumar did not refer to the line of authority which made a distinction between exemption provisions generally and exemption provisions which have a beneficial purpose. In the present case the HIV-VL test kits are life-saving diagnostic kits used for detection and prognosis of HIV virus in human body. Thus a purposive interpretation has to be extended to the entries in the Notifications so as to give the benefit of duty not only diagnostic kits for detection of HIV antibodies but to also other technologically advanced diagnostic kits used for detection and prognosis of HIV as they serve the same purpose. The object and purpose behind the introduction of exemption to HIV kits was in public interest to support the high demand of healthcare at affordable prices and to curb the spread of HIV virus in India. The HIV-VL test kits imported by the appellant would be entitled for exemption from BCD and CVD and only 5% integrated tax as provided for in List 1 of the IGST Rate Notification would be payable by the appellant. Re-determination of value - HELD THAT - It will not be possible to sustain the re-determination of the value of the imported goods undertaken by the Principal Commissioner under the 2007 Valuation Rules. The matter would therefore have to be remitted to the adjudicating authority to examine this issue afresh after supplying a copy of the SVB report to the appellant and in terms of the allegations made in the show cause notice dated 14.08.2021. Conclusion - i) The HIV-VL test kits imported by the appellant would be entitled for exemption from BCD and CVD and IGST would be payable @ 5% as provided for in List 1 of the IGST Rate Notification. The impugned order dated 30.06.2022 denying exemption from BCD and CVD and 5% IGST to the appellant would therefore have to be set aside. ii) The re-determination of the value of the goods imported by the appellant is accordingly set aside but the matter is remitted to the adjudicating authority to determine the value afresh. The impugned order dated 30.06.2022 passed by the Principal Commissioner is accordingly set aside - appeal allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal are:

(a) Whether the HIV-1 Viral Load (HIV-VL) test kits imported by the appellant are eligible for exemption from Basic Customs Duty (BCD), Countervailing Duty (CVD), and concessional Integrated Goods and Services Tax (IGST) under the relevant Customs and Excise Notifications, which expressly grant exemption only to diagnostic kits for detection of HIV antibodies;

(b) Whether the declared assessable value of imported goods, including HIV-VL test kits and other related diagnostic equipment, imported from related parties, can be rejected and re-determined under the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (the 2007 Valuation Rules), particularly when the declared values are alleged to be influenced by the relationship between importer and supplier;

(c) Whether the adjudicating authority had jurisdiction and correctly exercised it in re-determining the value on final assessed Bills of Entry, despite ongoing proceedings before the Special Valuation Branch (SVB) and show cause notices issued earlier;

(d) Whether penalty under section 114A and interest under section 28AA of the Customs Act, 1962 are rightly imposed on the appellant, considering the nature of the dispute;

2. ISSUE-WISE DETAILED ANALYSIS

A. Eligibility of Exemption Benefit to HIV-1 Viral Load Test Kits

Relevant legal framework and precedents:
The exemption notifications under scrutiny include Notification (Cus.) dated 17.03.2012 (Serial No. 148), Notification (Cus.) dated 30.06.2017 (Serial No. 167), Notification (C.E.) dated 17.03.2012 (Serial No. 108), and IGST Rate Notification dated 28.06.2017 (Serial No. 180). These notifications exempt from customs and excise duties, and levy concessional IGST on "diagnostic kits for detection of HIV antibodies" specifically listed under "life-saving drugs/medicines." The exemption is explicitly linked to detection of HIV antibodies, not viral load testing.

Court's interpretation and reasoning:
The Tribunal carefully examined the scientific and medical nature of HIV testing technologies. It noted that HIV diagnosis can be made by detecting viral products (viral RNA) or host immune response (antibodies). The HIV-VL test kits detect and quantify HIV-1 RNA using molecular techniques (RT-PCR), whereas the exemption notifications cover only kits detecting HIV antibodies (serological tests). The Tribunal considered the history of the HIV epidemic, the evolution of diagnostic technologies, and the public health importance of both antibody and viral load tests.

The Tribunal acknowledged the appellant's argument that exemption notifications should be interpreted purposively to cover advanced diagnostic kits like HIV-VL kits that serve the same public health objective. However, it emphasized the principle of strict interpretation of exemption notifications in customs law. The Tribunal held that the exemption is confined to the description "diagnostic kits for detection of HIV antibodies" as explicitly stated in the notifications, and cannot be extended to viral load test kits without formal amendment of the notifications by the Government.

Key evidence and findings:
- Import License issued under Medical Device Rules 2017 for "Xpert HIV-1 Viral Load" explicitly described the product as an in vitro RT-PCR assay for detection and quantification of HIV-1 RNA.
- Product catalogues and National AIDS Control Organization (NACO) guidelines distinguished between serological antibody tests and molecular viral load tests.
- The appellant's HIV-VL test kits are used for monitoring disease progression and antiretroviral treatment efficacy, not for initial HIV antibody detection.
- Notifications and lists appended thereto consistently specify exemption only for "diagnostic kits for detection of HIV antibodies."

Application of law to facts:
The Tribunal applied the principle that customs duty exemptions are to be strictly construed and cannot be extended by implication or purposive interpretation beyond the clear language of the notification. Despite the public health importance of HIV-VL tests, the exemption benefit is limited to antibody detection kits. The Tribunal found no legal basis to extend exemption to HIV-VL kits under the existing notifications.

Treatment of competing arguments:
The appellant's argument for a purposive and technology-neutral interpretation was rejected on the ground that the notifications' language is explicit and unambiguous. The Government's awareness of advanced testing methods and deliberate exclusion of viral load tests from exemption was noted. The Tribunal distinguished between the two types of tests and upheld the strict interpretation rule.

Conclusions:
HIV-VL test kits are not eligible for exemption from BCD, CVD, or concessional IGST under the relevant notifications, as these apply only to diagnostic kits for detection of HIV antibodies.

B. Re-determination of Value of Goods Cleared on Final Assessment Basis

Relevant legal framework and precedents:
The Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 provide the framework for determining assessable value. Rule 2(2)(v) defines related persons, and rule 12 allows rejection of declared transaction value if influenced by relationship. Rules 4, 5, 7, 8, and 9 provide sequential methods for re-determination of value when transaction value is rejected. Section 14 of the Customs Act mandates acceptance of transaction value only if importer and foreign supplier are not related or if the relationship did not influence price.

Court's interpretation and reasoning:
The Tribunal noted that the appellant and its foreign suppliers are related parties. The Special Valuation Branch (SVB) investigation suggested that the declared invoice values were influenced by the relationship and recommended a loading factor of 93.93%. The Principal Commissioner rejected the declared values for 85 Bills of Entry cleared on final assessment, re-determining values by applying loading factors ranging from 0% to 822%, after considering identical and similar goods under rules 4 and 5, and resorting to residual rule 9 where necessary.

The Tribunal examined the appellant's objections regarding jurisdiction and procedural propriety, including that the re-determination exceeded the scope of the show cause notice, that the loading factor was inconsistent with the notice, and that the impugned order relied on Bills of Entry not mentioned in the notice. The Tribunal found that the Principal Commissioner had jurisdiction to adjudicate on the 85 finally assessed Bills of Entry, especially since the appellant filed final assessments despite ongoing SVB proceedings and provisional assessment being available. It also found that a substantial number of Bills of Entry relied upon were included in the show cause notice, and the re-determination was within the statutory framework.

Key evidence and findings:
- The appellant's declared values were significantly lower than values for identical or similar goods imported by unrelated parties.
- The appellant's imports were under a Purchase and Distribution Agreement with the foreign supplier, which was not extended to unrelated importers.
- The appellant's claim of discounts for quantity and commercial level differences was not accepted by the Principal Commissioner.
- The appellant's argument that some goods were imported on free of cost basis by another related party (Labindia) was considered; the Tribunal noted that such imports declared at higher values for customs purposes do not reflect actual commercial transactions.
- The appellant's contention that rule 4 and 5 were inapplicable due to non-contemporaneous imports and differing commercial and quantity levels was rejected by the Tribunal as the Principal Commissioner applied the rules sequentially and reasonably.

Application of law to facts:
The Tribunal applied the statutory provisions of the Customs Act and the 2007 Valuation Rules, holding that the declared transaction value could be rejected if influenced by relationship. The Tribunal upheld the Principal Commissioner's methodology in re-determining value using sequential rules and loading factors based on available data of identical and similar goods. The Tribunal found no error in rejecting the appellant's declared values and in the extent of loading applied.

Treatment of competing arguments:
The appellant's contentions on jurisdiction, procedural irregularity, and valuation methodology were considered but found unpersuasive. The Tribunal emphasized that the appellant's failure to opt for provisional assessment and mis-declaration of related party status undermined its position. The appellant's reliance on rule 7 (deductive value method) was not accepted due to lack of requisite data. The Tribunal also rejected the appellant's claim that the valuation was at arm's length and that discounts were not considered.

Conclusions:
The Tribunal upheld the rejection of declared values and the re-determination of assessable values under the 2007 Valuation Rules, confirming the demand for differential duty, interest, and penalty.

C. Jurisdictional and Procedural Issues

Relevant legal framework:
The Customs Act and the 2007 Valuation Rules govern assessment and re-assessment procedures. Provisional assessment under section 18 and final assessment under section 17 are relevant. The jurisdiction of the Principal Commissioner to adjudicate on final assessments and to initiate proceedings under section 28(4) is established.

Court's reasoning:
The Tribunal held that the Principal Commissioner had jurisdiction to pass the impugned order, including re-determination of value of goods cleared on final assessment. The appellant's failure to seek provisional assessment and mis-declaration of relationship status did not bar the authority from initiating valuation proceedings. The Tribunal found no procedural infirmity in issuing show cause notices and adjudicating the matter.

Conclusions:
The Tribunal dismissed jurisdictional objections raised by the appellant.

D. Penalty and Interest

Relevant legal framework:
Section 114A of the Customs Act imposes penalty for short levy of duty caused by collusion, willful misstatement, or suppression of facts. Interest under section 28AA is leviable on delayed payment of duty.

Court's interpretation and reasoning:
The Tribunal noted that penalty under section 114A requires proof of collusion or willful misstatement. The appellant's case involved interpretation of exemption notifications and valuation rules. The Tribunal recognized that the appellant paid differential duty under protest and cooperated with investigation. However, since the Tribunal upheld the demand, penalty and interest imposed by the Principal Commissioner were also sustained.

Treatment of competing arguments:
The appellant argued absence of intent and bona fide nature of dispute, contending penalty was not warranted. The Tribunal acknowledged these submissions but held that since the demand was confirmed, penalty and interest were rightly imposed.

Conclusions:
Penalty under section 114A and interest under section 28AA were upheld as rightly imposed by the Principal Commissioner.

3. SIGNIFICANT HOLDINGS

"The exemption is confined to the description 'diagnostic kits for detection of HIV antibodies' as explicitly stated in the notifications, and cannot be extended to viral load test kits without formal amendment of the notifications by the Government."

"Customs duty exemption notifications are to be strictly construed and cannot be extended by implication or purposive interpretation beyond the clear language of the notification."

"Where the importer and foreign supplier are related persons and the declared transaction value is influenced by the relationship, the transaction value can be rejected and the assessable value re-determined under the Customs Valuation Rules."

"The adjudicating authority has jurisdiction to re-determine value on final assessment even if related party valuation issues are pending before the Special Valuation Branch, especially where the importer has filed final assessments and mis-declared related party status."

"Penalty under section 114A of the Customs Act is attracted only when short levy is caused by collusion or willful misstatement or suppression of facts; however, where demand is confirmed, penalty and interest are rightly imposed."

Final determinations:

- HIV-1 Viral Load test kits are not eligible for exemption under the relevant notifications limited to detection of HIV antibodies.

- The declared transaction values for imported goods from related parties were rightly rejected and re-determined by applying appropriate loading factors under the 2007 Valuation Rules.

- The Principal Commissioner had jurisdiction to pass the impugned order despite ongoing SVB proceedings.

- Penalty and interest imposed on the appellant were justified and upheld.