TMI Blog2022 (7) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... was open to the importers to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared by them and seek a reasonable opportunity of being heard, but they did not do so - It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importers/exporters confirm the acceptance in writing. It is non-consideration of the factual position emerging from the statements made by the respondent that led the Commissioner (Appeals) to believe that the declared value could be rejected only on the basis of reasonable and cogent evidence, which burden the Revenue failed to discharge as it could not prove that the invoice did not represent the true transaction value in the international market. Once the importers had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules. This is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value for the goods in the eight Bills of Entry. In Customs Appeal No. 52793 of 2019, the declared value was USD 1.03 per kg. The proper officer doubted the value of the goods declared by the respondent since the contemporaneous data in respect of the goods imported was USD 1.94 per kg. On being confronted with this contemporaneous data, the respondent submitted letters specifically stating that it agreed for enhancement of the value of goods to USD 1.94 per kg and that it did not desire that a show cause notice should be issued to it or personal hearing be provided to it, which requirements are set out in section 124 of the Customs Act, 1962 [ the Customs Act ]. It also stated that it did not desire that a speaking order, as contemplated under section 17(5) of the Customs Act, should be passed on the Bills of Entry. Similar letters were written by the respondent in the other appeals. In view of the specific requests made in the letters that were submitted by the respondent in regard to all the Bills of Entry that it had agreed for the declared value of the goods to be enhanced, the assessing officer assessed the value of the goods at the enhanced rate. It is after the payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal. I find considerable force in the contention of the appellant. The issue as to whether an assessee can file an appeal against assessment made in respect of Bill of Entry has been settled by judicial pronouncements. It is settled legal proposition that there is no estoppel in taxation matters. The Hon ble Supreme Court in the case of Dunlop India Limited Vs. UOI reported in 1983(13) ELT 1566(SC) has laid down that even assuming that there is an acceptance it does not preclude the assessee from challenging by way of appeal as there cannot be an estoppel against law. Similar view was held in [2015(329) ELT 307(T)] and 2016(343) ELT 963(T). 5.4 The appellant has assailed that the enhancement of assessable value is arbitrary and illegal as the practice of not making the assessment on the declared value in terms of the mandate of Section 14 of the Customs Act, 1962 read with Rule 3 of Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 (CVR, 2007), is against the provisions of law. Rule 3 of CVR, 2007 provides that subject to Rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provision of Rule 10 and unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtually no reason to reject the transaction value. Similar view has been held by Tribunal in Final Orders C/A/52972/2016 dated 08.08.2016 and C/A/52685-86 dated 27.07.2016. 5.11 Hon ble Supreme Court in the case of Noida Vs. M/s Sanjivani Non-Ferrous Trading Pvt. Ltd. (Civil Appeal No. 18300-18305/2017) held vide judgment dated 10.12.2018 that The normal rule is that assessable value has to be arrived at on the basis of the price which is actually paid, as provided by Section 14 of the Customs Act. That the declared price could be rejected only with cogent reasons by undertaking the exercise as to on what basis the assessing Authority could hold that the paid price was not the sole consideration of the transaction value. Since there is no such exercise done by the Assessing Authority to reject the declared in the Bills of Entry, Order-in-Original was therefore clearly erroneous. ******** ******** ******** 5.15 In view of the facts and findings, supra, I set aside the re-assessment of goods covered under the impugned Twenty Seven Bills of Entry. I allow the appeals filed by the appellant accordingly and restore the assessment at the declared values. (emphasis suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re allowed. 6. Shri Abhishek Jaju, learned counsel for the respondent made the following submissions: (i) The acceptance of the enhanced value proposed by the Department does not preclude the assessee from challenging the enhancement through an appeal as there cannot be an estopple against law in taxation matters. In support of this contention reliance has been placed upon the decision of the Supreme Court in Dunlop India Ltd. vs. Union of India [ 1983 (13) ELT 1566 (SC) ]; (ii) Section 17(5) of the Customs Act requires the adjudicating authority, in cases of re-assessment under section 17(4) of the Customs Act, to pass a speaking order. In fact, by a letter dated 15.03.2019 the respondent had requested the adjudicating authority to pass speaking orders in respect of the eight Bills of Entry but speaking orders were not passed. The enhancement of the assessed value is, therefore, arbitrary and illegal; (iii) The Commissioner (Appeals) was justified in observing that the assessable values in the past in the Bills of Entry were enhanced uniformly; and (iv) In similar matters, in the case of respondent itself, the Tribunal in Commissioner of Customs vs. M/s. Manavi Exim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation .-(1) For the removal of doubts, it is hereby declared that:- (i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9. (ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include - (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub- section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. 12. It would be seen that though in a case where re-assessment has to be done under sub-section (4) of section 17 of the Customs Act, the proper officer is required to pass a speaking order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be passed on the Bills of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importers/exporters confirm the acceptance in writing. 16. It is no doubt true that the value of the imported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the Rules to be made in this behalf. The Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may ask the importer to furnish further information. Rule 12(2) stipulates that it is only if an importer makes a request that the proper officer shall, before taking a final decision, intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared and provide a reasonable opportunity of being heard. To remove all doubts, Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d transactional value based on certain reasons to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules . What is meant by the expression grounds for doubting the truth or accuracy of the value declared has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the reason to doubt exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared. (emphasis supplied) 19. It is non-consideration of the factual position emerging from the statements made by the respondent that led the Commissioner (Appeals) to believe that the declared value could be rejected only on the basis of reasonable and cogent evidence, which burden the Revenue failed to discharge as it could not prove that the invoice did not represent the true transaction value in the international market. 20. Despite the specific requests made by the importers in the letters submitted by them, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules. This is for the reason that it is only when the value of the imported goods cannot be determined under rule 3(1) for the reason that the declared value has been rejected under sub rule 2, that the value of the imported goods is required to be determined by proceeding sequentially through rule 4 to 9. As noticed above, the importers had accepted the enhanced value and there was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially. 23. In this connection, it would be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs. Commissioner of Customs, Jodhpur [ 2015 (326) E.L.T. 185 (Tri. Del) ], wherein the Tribunal, after making reference to the decisions of the Tribunal in Vikas Spinners vs. Commissioner of Customs, Lucknow [ 2001 (128) E.L.T. 143 (Tri. Del) ] and Guardian Plasticote Ltd. vs. CC (Port), Kolkata [ 2008 (223) E.L.T. 605 (Tri. Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar situation observed as under: 7. In our view in the present appeal, the question of loading of the value of the goods cannot at all be legally agitated by the appellants. Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999 . After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5-1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same . There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction value requiring no further investigation; (ii) When an importer accepts the loaded value of the goods without any protest or objection, the importer cannot be permitted to deny its correctness; and (iii) The burden of the Department to establish the declared value to be in correct is discharged if the enhanced value is voluntarily accepted. 28. This is precisely what was held by this Bench of the Tribunal in Hanuman Prasad Sons. 29. The decisions on which reliance has been placed by learned counsel for the respondent were considered and distinguished by this Bench of the Tribunal in Hanuman Prasad Sons. 30. Reliance was also placed by learned counsel for the respondent on a decision of the Tribunal in their own case. This decision was rendered on 21.10.2020, a day after the decision was rendered by this Bench of the Tribunal in Hanuman Prasad Sons on 20.10.2020. In the said decision, a finding was recorded by the Tribunal that it was because the Department was coercing the importer that the importer by letter dated 01.03.2019 stated that the value of the goods could be re-determined. The Tribunal also noticed that such letter was given because of undue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the respondent has also emphasized that NIDB data cannot be the sole basis to reject the transaction value without any cogent reasons. As seen above, the importers had in writing accepted the transaction value and it is perhaps for this reason that they did not require any show cause notice to be issued to them or a personal hearing to be granted to them. The respondent is, therefore, not justified in asserting that the transaction value has been determined on the basis NIDB data. It was their acceptance of the value that formed the basis for determination of the value. The decisions relied upon by the respondent to support the contention sought to be raised are, therefore, of no benefit to them. 34. The general observations made the Commissioner (Appeals) in the impugned order that the value declared in the Bills of Entry were being enhanced uniformly by the Department for a considerable period of time was uncalled for. The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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