9911796707
TMI Blog2023 (10) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... roper officer of the customs by enhancing the value of the imported goods without passing any speaking order in almost all cases (with few exceptions) as provided under Section 17(5) of the Customs Act, 1962. 3. All the six appellants preferred appeal before the Commissioner (Appeals) against such re-assessment orders and the learned Commissioner (Appeals) while passing following Order-in-Appeals remanded back the matters to the Assistant Commissioner for passing speaking order: Sr.No. Name of the appellant Order-in-Appeal Nos. & date 01 M/s. Tha Tulsidas Ramji MUN-CUSTM-000-APP-417 to 445-17-18 dated 01.03.2018 in 26 Bills of Entry/Assessment Orders stated therein 02 M/s. H. R. & Sons MUN-CUSTM-000-APP-382 to 416-17-18 dated 28.02.2018 in 35 Bills of Entry/Assessment Orders stated therein 03 M/s. Mahendra Kumar & Brothers MUN-CUSTM-000-APP-034 to 060-18-19 dated 04.05.2018 in 9 Bills of Entry/Assessment Orders stated therein 04 M/s. Kamlesh Traders MUN-CUSTM-000-APP-034 to 060-18-19 dated 04.05.2018 in 9 Bills of Entry/Assessment Orders stated therein 05 M/s. Vasani Cold Chain Pvt. Ltd. MUN-CUSTM-000-APP-034 to 060-18-19 dated 04.05.2018 in 9 Bills of Entry/Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows:-That the impugned order passed by the learned Commissioner (Appeals) is cryptic and he has not given any specific orders of assessment of Bills of Entry. The Principal Commissioner had inter alia claimed relief in the appeal before the Commissioner (Appeals) to set aside impugned Order-in-Original passed by the Assistant Commissioner and grant any other relief as may be deemed fit under the law and in the interest of justice. The learned Commissioner (Appeals) while passing impugned order has ordered that ".... I hold that the impugned orders of the lower authority are not legal and proper. Accordingly, I set aside the impugned orders and allow the appeals filed by the appellant department." It means he has set aside the re-assessment order passed by the Assistant Commissioner in remand, allowed the appeal but not restored original re-assessment order enhancing the declared transaction value declared in the check list which was set aside by himself nor order to assess all the bills of entry at such so called contemporaneous price. It is also submitted that there was no such prayer by the learned Principal Commissioner in appeal too. Therefore, merely by setting aside the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods being valued. Rule 4 ibid is starting with the words "subject to the provisions of Rule 3 of these rules" it means Rule 3 has overriding effect over the provisions of Rule 4. Accordingly, provisions of Rule 3 will prevail over the provisions of Rule 4 in case of conflict between the two provisions. When transaction value as per Rule 3(1) is available, question of applying any other transaction value does not arise particularly when there is no cogent documentary evidence to presume that declared transaction value was not true. 7.4 It was further submitted that Rule 4(3) ibid specifically mentions that „In applying this rule, if more than one transaction value of identical goods is found, the lowest such value shall be used to determine the value of imported goods.‟ As such applying this rule, the lowest of the transaction value is to be used to determine the value of imported goods. However, such situation may arise only in cases where transaction value in terms of section 14 of the Act read with rule 3(1) of the said Rules is not ascertainable. 7.5 Appellants further submit that as per the provisions of Rule 3(1) ibid the value of imported goods shall be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has discussed Explanation (1) (iii) (a) in the impugned appeal and reproduced Rule 12 However, the learned Commissioner (Appeals) has failed to appreciate that the said Rule does not empower the assessing officer to reject declared true transaction value on whims and fancies and that „reason to doubt‟ does not mean „reason to suspect‟. Besides, Rule 12(2) specifically directs that at the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). However, the Appellant was never informed of the reasons for doubting the truth or accuracy of the declared value of wet dates by the department in terms of rule 12(2) of the said Rules, though it had protested against re-assessment of the goods on enhanced value and also sought the same in writing in the submissions made before the Assistant Commissioner. This fact also gets confirmed from findings recorded in the order of the Assistant Commissioner. 7.10 In the above context, kind attention of Hon‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgments makes it clear that declared transaction value cannot be rejected merely based on NIDB data of similar/ identical goods without any cogent reasons duly supported by evidence. The learned adjudicating authority in impugned order has rightly pointed out at para 15 in the impugned order that "If the Proper Officer found some higher prices on contemporaneous imports, he should have conducted an inquiry to substantiate the same with incontrovertible evidences which should have been confronted to the importer before passing speaking order for rejection of declared value...." Under such circumstances, they submit that even if the learned adjudicating authority had misplaced reliance on Board‟s Circular No. 26/2013-Cus dated 19.07.2013 & NIDB data as per Para 12 of the OIA, the fact remains Pthat NIDB data alone is not sufficient to reject the declared transaction value without proper inquiry into the matter regarding the circumstances, It was therefore requested to set aside the impugned order. 8. Learned AR rebutted the arguments relied upon the order of Commissioner (Appeals) and justified the rejection of transaction value on the basis of NIDB data and on doubts havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, find that the Commissioner (Appeals) has hastily and without proper discussion set aside the order of adjudicating authority through his cryptic reasoning. We, therefore, hold that rejection of transaction value even when based upon NIDB data cannot be done without disclosing materials, as well as identical nature of the goods, and transaction value rejecting through reasoned order. In absence of the same on the part of proper office rejection of transaction value without complete disclosures is invalid. Further, in 2019 (367) ELT 3 (S.C.) in the matter of CENTURY METAL RECYCLING PVT. LTD Vs. UNION OF INDIA, the Hon‟ble Supreme Court while dealing with Rule 12 has summarised the following requirements for rejection of valuation, same are reproduced below:- "15. The requirements of Rule 12, therefore, can be summarised as under: (a) The proper officer should have reasonable doubt as to the transactional value on account of truth or accuracy of the value declared in relation to the imported goods. (b) Proper officer must ask the importer of such goods further information which may include documents or evidence; (c) On receiving such information or in the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
