TMI Blog2000 (7) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee has not properly valued the goods. In the opinion of the Revenue, value of the Coke should be US$ 65 per Metric Tonne. The petitioner being in urgent need of the Coke, furnished bank guarantee and the goods were cleared. The second consignment arrived at Okha port in January, 2000. The Revenue sticked to the earlier opinion and as the goods were not cleared, the present petition came to be filed. #. During the hearing of the matter, exparte order was passed, however, lateron Union of India placed an order passed by the Central Excise Gold Appellate Tribunal, New Delhi ( hereinafter to be referred to as CEGAT ) in appeal nos. C/692 to 697/98-AD and considering submission on that basis, the Court, modified the order. On behalf of the Revenue, relying on the aforesaid order, submissions were made before the Court. It was stated that anti-dumping duty will be levied as per the decision rendered by the CEGAT as referred in para 12 of its judgment. The Division Bench expressed an opinion at that stage that the petition is not required to be entertained. The Bench made it clear that in case of difficulty, either side can move the Court by filing an appropriate appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut any bank guarantee keeping the latest trend of Coke value and the same is to be finally assessed at its correct value as may be determined by Director of Valuation, Mumbai. In the month of February, 1999, it was clear to the Revenue that there were several importers who imported Coke at a price varying from US$ 87.5 to US$ 93 per Metric Tonne. It is also clear that the Assistant Commissioner was waiting for the value that may be determined by the Director of Valuation, Mumbai. Till today, no material is placed before the Court about the valuation fixed by the Director of Valuation, Mumbai. #. It appears from the record that one Rashtriya Ispat Nigam Limited imported Coke in February, 1999. Taking into consideration the value indicated by the Rashtriya Ispat Nigam Limited, the officer at Ahmedabad addressed a letter on 30.9.99, directing to assess the bill of entry of Coke of Chinese origin provisionally taking the bank guarantee towards anti-dumping duty on the basis of US$ 65 per Metric Tonne as the import price. It is required to be noted that in the letter dated 30.9.99, it is specifically mentioned that the investigations are under progress to find out the actual price. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information. (4) Notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be reassessed to duty. Thus, for the purpose of assessment, it is absolutely necessary to see that without undue delay, the goods are examined and if the officer is of the opinion that the same is to be tested then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioners, it was submitted that proper officer has not called upon the petitioner to produce any document or to furnish any information necessary for assessment of the duty on the imported goods. It is not the case of the Revenue that the proper officer was of the view that the imported goods are required to be tested for the purpose of assessment of the duty. The importer has produced necessary material and has furnished whatever information he had for the assessment of the duty. What Mr. Pandya contends is that in a given case, it may not be possible for the proper officer to examine the goods himself. He may not be an expert and therefore, it is open for him to seek the assistance of an expert. Mr. Pandya therefore submitted that in the instant case, the assistance of Valuation Officer was sought for. Against this, on behalf of the petitioners it is submitted that prior to February, 1999, Valuation Officer was requested in this behalf to send his opinion. It is further submitted that it is not the case of the Union of India that a sample of the Coke imported by the petitioners was forwarded to the Valuation Officer as also the sample of the Coke imported by Rashtriya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which, was between US$ 86.71 to US$ 92.62 per metric tonne. The ports are also different. What is interesting is that after the aforesaid letter dated 4.2.99, in some of the cases, Coke was imported and yet they were permitted to clear without any anti-dumping duty accepting the price at US$ 86.71 to 93. It is submitted before us that there is no question of anti-dumping duty as the price is more than ₹ 4673/per metric tonne. The petitioner would require to pay anti-dumping if the price is less than ₹ 4673/per metric tonne. ##. So far as the valuation is concerned, ordinarily the Court should proceed on the basis that the apparent tenor of the agreements reflect the real state of affairs. Where the Revenue has succeeded in showing that the apparent tenor is not real and the price shown in the invoice does not reflect the true sale price, only then the question of exercise would arise. Learned counsel, relying upon the Apex Court judgment in the case of Mirah Exports Pvt. Ltd. v. Collector of Customs, reported in 1998 (98) E.L.T. 3 (S.C.), submitted that that was the case of under-valuation and the principle laid down by the Apex Court in that decision will apply i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end, it was submitted that the Valuation Officer will determine the value and the Court should give direction to the Valuation Officer. A request is made to the Court to give direction if the officer is not acting in the interest of the Revenue, it is for the Revenue to take appropriate action against their own officer as he is not active and prefers to remain inactive. ##. In view of these facts and circumstances, we direct the Union of India to release the goods on taking a bond from the petitioners and we further direct the petitioners to file an undertaking in this Court. We further direct that the exercise of assessment will be completed by the Revenue officers within a period of 15 days from the date of receipt of the writ. The undertaking shall be filed by all Directors of the Company within a week. At the time of making assessment, the observations made by this Court in this judgment shall not be born in mind by the Proper Officer and he shall make assessment independently without being influenced by the order passed by this Court. ##. Copy of undertakings filed in this Court shall be given to the counsel for the Union of India and the officer concerned under the sign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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