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TMI Blog2020 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... LC, Dubai, United Arab Emirates (referred to hereinafter as 'the seller') for 2,15,000.00 AED equivalent to Rs. 42,67,470.00 in Indian currency. It is stated that the said price was paid by petitioner No.2 through his AMEX card on 14.06.2018. It is further stated that the said watch has been imported for the personal use of petitioner No.2. 4. According to the petitioners, in the invoice dated 16.12.2018 the seller mentioned the CIF value but due to inadvertence, instead of CIF, C and F was printed. 5. Petitioner No.1 filed bill of entry bearing No.9494939 dated 02.01.2019 for the purpose of assessment of the imported watch under the Customs Act, 1962 (briefly 'the Customs Act' hereinafter). Petitioner declared the value of the imported watch at Rs. 42,32,845.00. 6. After hearing the matter, Deputy Commissioner of Customs, Group VB, Air Cargo Complex, Sahar, Andheri (E), Mumbai i.e., respondent No.3 passed order-in-assessment dated 25.03.2019 rejecting the declared value of the imported watch and re-determined the same at Rs. 1,00,49,150.00 under Rule 9 of the Customs Valuation Rules, 2007. 7. Aggrieved by the said order-in-assessment, petitioners preferred an appeal under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not arise. 12. Respondents have filed an affidavit through Mr. Prashant Gawande, Deputy Commissioner of Customs (Import), Air Cargo Complex, Sahar, Andheri (E), Mumbai. Stand of the respondents is that during assessment proceeding petitioner had declared value of the imported watch at Rs. 42,32,485.00. On investigation by the Customs Department it was found that online e-commerce price of such brand of watches ranged from Rs. 2,09,02,328.00 to Rs. 2,69,82,814.00. The declared price was very low compared to the price of similar goods available in the market. Thus under Rule 9 of the Customs Valuation Rules, 2007 price of the imported watch was decided by taking the lowest selling price of Rs. 2,09,02,328.00 and the assessable value was decided at Rs. 1,00,49,150.00. Thereafter order-in-assessment was passed on 25.03.2019. 12.1. Against the order-in-assessment, petitioner preferred appeal which was allowed vide the order-in-appeal dated 29.11.2019. It is stated that the said order-in-appeal was received on 18.12.2019. 12.2. Referring to the letter dated 04.02.2020, it is stated that petitioner was informed to avail provisional release of the imported watch subject to submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part, respondents have favourably considered the request of the petitioners for provisional release of the good in question vide letter dated 04.02.2020. If the petitioners are aggrieved by the conditions imposed for provisional release of the good in question, they can file appeal. He therefore seeks dismissal of the writ petition. 15. Submissions made by learned counsel for the parties have been duly considered. Also perused the materials on record. 16. Short point for consideration is whether respondent No.3 is justified in not releasing the imported watch of the petitioner in terms of the order-in-appeal dated 29.11.2019 and insisting on provisional release of the same subject to the conditions mentioned in the letter dated 04.02.2020? 17. Before venturing to answer the above question, it would be apposite to deal with the order-in-assessment as well as the order-inappeal and the related factual matrix. 18. On perusal of the order-in-assessment dated 25.03.2019 it is seen that respondent No.3 noted that as against the declared value of the imported watch at Rs. 42,32,845.00 online price of such brand of watches ranged from Rs. 2,09,02,328.00 to Rs. 2,69,82,814.00. A view wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full details of the watch. During the course of adjudication proceedings, a letter of M/s. New Mashoom Jewellery LLC UAE was submitted reiterating particulars of invoice and confirming that payment was made through Amex Card on 14.06.2018 (i.e. more than 6 months in advance) for an amount of AED 2,15,000/- equivalent to Rs. 4232845/-. 6. It is not the case of Revenue that the transaction entered into by the importer was not genuine or under-valued or the appellant had suppressed any information about brand / specification of the watch or had made any additional payment for the said watch other than the banking channel. There is no allegation of the supplier and importer being in collusion. Admittedly, there is no contemporaneous import data suggesting import of the watch at higher value as well. 7. I find that section 14 of the Customs Act, 1962 provides that the value of imported goods shall be the transaction value i.e., the price actually paid or payable when sold for export to India where the buyer and seller are not related and price is the sole consideration. It is further observed that sub Rule 3 of Customs Valuation Rules, 2007 specifies that transaction value shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.2019 was received by the respondents on 18.12.2019. Committee of Commissioners took the decision on 05.03.2020 that the Customs Department should file appeal against the order-in-appeal before CESTAT whereafter the appeal alongwith stay application were filed on 09.06.2020 before CESTAT, Mumbai Bench. Be that as it may, since the Customs Department has preferred appeal before the CESTAT, we would refrain from expressing any opinion on merit. That leaves us with the question which we have formulated on the basis of objections raised by the respondents. 21. Section 129 of the Customs Act deals with Appellate Tribunal i.e., CESTAT whereas section 129-A deals with appeals to Appellate Tribunal. As per sub-section 1(b) of section 129-A, an order passed by the Commissioner (Appeals) under section 128-A is appealable to the CESTAT. 21.1. Sub-section (1B) provides for constitution of Committee of Commissioners of Customs by order of Central Board of Excise and Customs. As per sub-section (2) the said Committee shall examine an order-in-appeal passed under section 128 or 128-A and if it is of the opinion that the said order is not legal or proper, then to direct the proper officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressions contained in various sub-sections of section 3 would be applicable to all central acts and regulations unless there is anything repugnant in the subject or context. As per sub-section (35) of section 3, the word 'month' has been defined to mean a month reckoned according to the British calendar. 23.2. In the case of In re: V. S. Metha, AIR 1970 AP 234, Andhra Pradesh High Court was considering the provisions of section 106 of the Factories Act, 1948 as per which no court shall take cognizance of any offence punishable under the said act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of the inspector. In that context, Andhra Pradesh High Court examined the meaning of the word 'month' : whether it would mean 30 days in which case the complaint should be filed within 90 days from the date of knowledge. After referring to section 3(35) of the General Clauses Act, 1897, it was held that the word 'month' would mean a calendar month and by extension the term 'three months' as appearing in section 106 of the Factories Act, 1948 would only mean a period of three calendar months. 23.3. Agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affidavit have placed reliance on Chapter V of the Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020 (briefly "the 2020 Ordinance" hereinafter) to contend that they would get the benefit of the said Ordinance by extension of the period of limitation. We have already held that the limitation period for filing appeal before the CESTAT had expired on 18.03.2020 though under sub-section (5) of section 129-A of the Customs Act, the limitation period is extendable if sufficient cause is shown. 25. In exercise of the powers conferred by clause (1) of Article 123 of the Constitution, President of India has promulgated the 2020 Ordinance, which was published in the Gazette of India, Extraordinary on 31.03.2020 to provide relaxation in the provisions of certain acts and for matters connected therewith or incidental thereto. It was stated therein that in view of the spread of pandemic COVID-19 causing immense loss to the lives of people, it had become imperative to relax certain provisions including extension of time-limit in taxation and other laws. Chapter V of the 2020 Ordinance deals with relaxation of time-limit under certain indirect tax laws, such as the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the order-in-appeal. Not even a notice has been issued though urgent matters including stay applications are being heard by CESTAT through video-conferencing. Nothing has been placed on record to show that respondents had moved or attempted to move CESTAT for even a notice, not to speak of stay. 27. In so far the decision in Kamlakshi Finance Corporation Limited (supra) relied upon by the petitioners is concerned, Supreme Court held in clear terms that the mere fact that the order of the appellate authority is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. In that case arising out of the Central Excise Tariff Act, 1985 the adjudicating authority did not comply with the order passed by the appellate authority. When this was questioned before the High Court, severe strictures were passed by the High Court against two Assistant Collectors who had dealt with the matter. Upholding the strictures passed by the High Court, Supreme Court held that utmost regard should be paid by the adjudicating authorities as well as the appellate authorities to the requirements of judicial discipline and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 'set aside' was examined by a Division Bench of this Court in a recent decision dated 03.08.2020 passed in the case of Dudhganga Sahakari Dudh Utpadak Sangh Maryadit Vs. Divisional Joint Registrar, Pune where it was held as under: "32. When an order is set aside by a superior authority, the consequence thereof is that it becomes inoperative; it is rendered null and void; it is erased from the record book as if it was never passed. Advanced Law Lexicon, 3rd Edition, Reprint 2007 defines the expression 'set-aside' to mean to annul, quash, render void or nugatory. Similarly, in Supreme Court on Words and Phrases, Second Edition, it is stated that the ordinary meaning of the words 'set-aside' is to revoke or quash, the effect of which is to make the interim order inoperative or non-existent." 29.1. Therefore, when the order-in-assessment has been set aside by the appellate authority, the original order no longer survives until and unless the order-in-appeal is either stayed or in the ultimate analysis itself is set aside. Therefore, basing upon the order-in-assessment which no longer survives, it is not open to the departmental authorities to grant provisional release of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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