TMI Blog2023 (10) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... ct a different classification to be substituted. Even now, it is not their claim that goods are scrap but merely that it is not intended to be erected as machinery and the goods, in disassembled form, have not been claimed to fit any other classification with declaration disowned as in error. Usage after import is not a criterion for classification. Therefore, the goods merit assessment in accordance with the declaration. The goods are admittedly of 1942 vintage and it is seen that paragraph 2.31 of the Foreign Trade Policy restricts second hand goods other than capital goods and, as it is not the case of customs authorities that these are not capital goods , the impugned goods would be freely importable. Consequently, confiscatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, is under challenge. 2. It is submitted that the plate leveler had been manufactured by M/s Stemco in 1942 and that it had been dismantled as it could not be used as such; he clarified that the goods are nothing but scrap and that the agreement between M/s Jindal Saw USA, LLC and the importer was thus for sale at the prevailing price of market scrap as reflected in sale contract dated 18th June 2009. According to him, the certification from chartered engineer, M/s Steel Metallurgical Consultants, Inc., furnished by them at the time of import clearly indicates this and that customs authorities have not established that the relationship with supplier has influenced the price. It was further contended that the equipment had been dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also argued by him that the contraventions came to light after clearance and that, in such cases, as held by the Tribunal in Prasant Glass Works P Ltd v. Collector of Customs, Calcutta [1996 (87) ELT 518 (Tribunal)], it was not necessary that accompanying documents had to be accepted. Further reliance was placed on the decision of the Tribunal in Commissioner of Customs v. PV Ukkru International Trade [2009 (235) ELT 229 (Ker)] and in Commissioner of Customs, Mumbai v. Multimetal Ltd [2002 (144) ELT 574 (Tri-Mumbai ]. 5. There are two aspects for consideration here: the description of the goods and value for assessment. Very little has been put forward, and except as passing narration of facts, by the appellant as far as the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962 lacks authority of law. 8. As far as valuation is concerned, recourse was had to rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for rejecting the declared value on the admitted relationship of buyer and seller and that the certification by chartered engineer has not been determined on the basis of cost but upon market value of scrap. The decisions relied upon by both sides have not taken into consideration the rigours of the rules in place or the circumstances in which judicial interpretation streamlined the operation of the immediately preceding scheme of valuation. 9. That the buyer and seller are not unrelated is not in dispute but the essence of section 14 of Customs Act, 1962 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this sub-rule. of rule 3 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, recourse to anything other than declared value must be preceded by appropriate justification. The orders of the lower authorities are bereft of any finding on that score. Accordingly, redetermination contingent on adverse presumption is not valid. 10. The only other recourse for re-determination, through sequential application of rule 4 to rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, is by drawing upon the authority of rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. Though the provision affords wide latitude of assessing officers, it is, nonetheless, circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fraudulent or manipulated documents. while (2) 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 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). in rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 is to be triggered by request of importer, where show cause notices are concerned, that onus shifts to the customs authorities. We find a marked absence of such in the notice as well as orders of lower authorities. 11. The system for valuation in Customs Valuation (Determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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