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TMI Blog2023 (6) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... 828 9613145 dt. 09.05.2017 12.05.2017 290 440 1940 issued on 02.06.2017 961315 dt. 09.05.2017 12.05.2017 290 440 9653394 dt. 11.05.2017 18.05.2017 290 440 2. 829 9363156 dt. 19.04.2017 09.05.2017 280 440 1785 issued on 26.05.2017 9364893 dt. 19.04.2017 09.05.2017 280 440 9364730 dt. 19.04.2017 09.05.2017 280 440 9365005 dt. 19.04.2017 09.05.2017 280 440 2. To avoid delay and demurrage charges, the said importer cleared the goods on payment of enhanced Customs Duty. The assessment order was passed under section 17(5) of the Customs Act 1962 for all the Bills of entry, as mentioned in the Table above. The Appellant filed appeals before Commissioner(Appeals), who vide order dated 25.09.2017 set aside the enhancement of values and assessed the impugned Bills of Entry at declared values. The Department is in Appeal against the impugned order. 3. In their grounds of appeal, the Appellant (Department) contended that in respect of all these seven Bills of Entry, the Respondents agreed to the enhancement of values. They also sought waiver of show cause notice and personal hearing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2015 (326) ELT 185 (Tri.-Delhi)]. However, we observe that the Ld Commissioner (Appeals) has given a clear findings on this objection by citing the decision in the case of Commissioner of Customs, Delhi vs. Maruti Fabric Impex reported in 2016 (343) ELT 963 (Tri.-Delhi.) The relevant para in the impugned order is reproduced below: a. "5.....As regards the first objection, we find that the provision of Section 17 does not preclude an assessee from filing an appeal against the enhancement. The issue is no more res integra and stands settled by various decisions. In the case of Digitech Photocopier v. CC, Mumbai reported as 2009 (233) E.L.T. 425 (Tri.-Del.), it was held that forced acceptance of enhanced value when goods under detention does not debar importer to challenge such value. Reference can also made to the majority decision of the Tribunal in the case of Marque Enterprises v. CC (Preventive), Amritsar reported as 2015 (329) E.L.T. 307 (Tri.-Del.), wherein it was held that in case of clearance of goods by the importer on the enhanced value so as to avoid detention and demurrage charges, the subsequent challenge of enhancement before the higher appellate forum amounts to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods assessed at enhanced value. No reason for the rejection of the transaction value or enhancement of value has been indicated by the assessing authority. It is well settled that transaction values constitute assessable value under the Customs Act. If the goods have to be assessed at a different value, the transaction value has to be rejected first based on the legally permissible grounds as indicated in the Valuation Rules. The assessee should also be put on notice that their transaction value is being rejected for the stated reasons and goods are proposed to be assessed at a higher value. The circumstances that permitted such rejection and the alternative basis for fixing assessable value are specified in the Valuation Rules themselves. No such legally permissible steps are found to be taken in the present case. The assessing authority has not passed any order indicating the reason for rejecting the transaction value or fixing the value at higher level. The Commissioner (Appeals) also has not indicated any reason warranting assessment at higher value except to state that "Since the value of the goods declared by the appellant appeared to be on lower side, these Bills of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard, before taking a final decision under sub-rule (1). 13. In the instant case, we observe that the Respondent has imported 'EG Defective /Secondary Sheets' from the sole representative of the manufacturer and the invoice was raised by them. We observe that the Department has not brought in any evidence to reject the invoice value as declared by the importer. The department has resorted to rejection of the declared value and reassessment of the Bills of Entry on the basis of valuation of contemporary similar/identical goods at other ports as mentioned in NIDB/DGOV data. In this regard, we reproduce below the definitions of 'Similar' and 'Identical goods' as per CVR, 2007: " Identical goods" means imported goods - i. Which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods; ii. Produced in the country in which the goods being valued were produced; and iii. Produced by the same person who produced the goods being valued, or where no such goods are available, goods produced by a different person, But shall not include imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " The goods were not subjected to examination by any panel of experts. No doubt as the departmental representative contends that Rule 10(L)(b) of the Valuation Rules requires the importer to furnish the manufacturer's invoice if asked for by the proper officer. The appellant on being so asked, stated that it did not have the manufacturer's invoice. We do not see how this can be held against it. It is difficult to expect in the case of second hand goods, that the manufacturer's invoice will travel with the consignment from the first every purchaser. In any event, there is no provision in the Act to say that in the absence of the manufacturer's invoice, transaction value cannot be accepted or is to be considered not to be genuine. There was therefore no reason for not accepting the transaction value". Also, the respondent has placed reliability on the NIDB data in determination of the value of the imported goods (similar/identical in nature). The value was enhanced citing higher prices of the contemporaneous imports of similar goods. However, the valuation of similar goods depends on factors such as country of origin, quantity of the goods imported, produced by the same person who p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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