TMI Blog2023 (9) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... er officer is required to pass a speaking order on the re-assessment, but if the importer or exporter confirms his acceptance of the re-assessment, a speaking order is not required to be passed. It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Subsection (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper officer shall pass a speaking order on the re-assessment, except in a case where the importer confirms his acceptance of the said re-assessment in writing - In the present case, the proper officer doubted the truth or accuracy of the value declared by the appellant for the reason that contemporaneous data had a significantly higher value. It was open to the appellant to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared and seek a reasonable opportunity of being heard, but the appellant did not do so. It needs to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 C/52509/2019 C/52510/2019 C/52511/2019 C/52512/2019 C/52513/2019 C/52514/2019 C/52515/2019 C/52516/2019 C/52517/2019 C/52518/2019 C/52519/2019 C/52520/2019 C/52521/2019 C/52522/2019 C/52523/2019 C/52524/2019 C/52525/2019 C/52526/2019 C/52527/2019 C/52528/2019 C/52529/2019 C/52556/2019 C/52557/2019 C/52558/2019 C/52559/2019 C/52560/2019 C/52561/2019 C/52562/2019 C/52563/2019 C/52564/2019 C/52565/2019 C/52566/2019 C/52567/2019 C/52568/2019 C/52569/2019 C/52570/2019 C/52571/2019 C/52572/2019 C/52573/2019 C/52574/2019 C/52575/2019 C/52576/2019 C/52577/2019 C/52578/2019 C/52579/2019 C/52580/2019 C/52581/2019 C/52582/2019 C/52620/2019 C/52621/2019 C/52622/2019 C/52623/2019 C/52624/2019 C/52625/2019 C/52626/2019 C/52627/2019 C/52628/2019 C/52629/2019 C/52630/2019 C/52655/2019 C/52656/2019 C/52657/2019 C/52658/2019 C/52659/2019 C/52660/2019 C/52661/2019 C/52662/2019 C/52663/2019 C/52664/2019 C/52665/2019 C/52666/2019 C/52667/2019 C/52668/2019 C/52669/2019 Hon ble Mr. Justice Dilip Gupta, President Hon ble Mr. P.V. Subba Rao, Member (Technical) For the Appellant : Shri N.L. Jangir, Advocate For the Department : Shri Rakesh Kumar, Authorized Representative ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al invoice under section 14 of the Customs Act 1962 [the Customs Act ] ; iii. The value declared by the appellant did not fall under the exceptions provided under the Customs Valuation (Determination of Value of Imported Goods) Rules 2007 [the Valuation Rules] and , therefore, could not have rejected under rule 12 of Valuation Rules; iv. The appellant had not submitted letters of acceptance of the enhanced value nor the appellant had submitted any letter stating that show cause notice should not be issued or a speaking order should not be passed; v. In support of the contentions, learned counsel for the appellant placed reliance upon a decision of the Supreme Court in C.C.E S.T., Noida vs Sanjivani Non-Ferrous Trading Pvt. Ltd .[2019 (365) E.L.T.. 3 (S.C.)] and other cases to which reference shall be made at the appropriate stage. 3. Shri Rakesh Kumar, learned authorized representative appearing for the Department made the following submissions: i. The Assessing Officer had reason to doubt the accuracy of the value declared in the Bills of Entry submitted by the importer as they were grossly undervalued as compared to the contemporaneous import data and since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the sale, subject to such other conditions as may be specified in the rules made in this behalf. The Valuation Rules have been framed in exercise of the powers conferred by section 14 of the Customs Act. Rule 12 deals with rejection of the declared value and is reproduced below: Rule 12. Rejection of declared value. - (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule(1) of rule 3. (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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed. 8. It would also be useful to reproduce the relevant portion of section 17(5) of the Customs Act and it is as follows: Section 17. Assessment of duty.- (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, selfassess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under subsection (2), the proper officer may require the importer, exporter or any other 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sir, Subject: Acceptance of value in respect of goods covered vide Bill of entry no. 6791989 Dtd. 14.06.2018 regarding. We M/s Sumridhi Aluminium Pvt. Ltd have imported Twitch_ (code/grade of Aluminum scrap) Aluminum scrap under bill of lading no MSCUWK710587 dtd 28.04.2018 and have filed a bill of entry no 6791989 dtd 14.06.2018 for clearance of the same declaring value therein @1475/mt(CIF/CSF/CI). We were shown the contemporarious Import of the said Aluminum scrap from the NIDB date and LME price of prime Aluminum for the corresponding period @________/mt Having taken into consideration factors like insurance, freight, landing charges etc, to arrive at the assessable value of said _Twitch_ (code/grade) Aluminum scrap a discount of _25%_ on the said LME price of prime Aluminum is correct and appropriate. Accordingly, in view of the said contemporarious NIDB date and discount from LME price of prime Aluminum, we voluntarily accept the assessable value of the said@$ 1801/mt. 2. Since we are voluntarily accepting the price of said Twitch_(code/grade) Aluminum scrap, we do not want any speaking order on the re-assessment of the same. We also do not want any Show Cause Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duty on the enhanced value accepted by the appellant that the out of charge orders were issued and the goods were cleared. The appeals were filed by the appellant before the Commissioner (Appeals) much after the out of charge orders were issued. If the appellant had actually not submitted the letters there was no reason for the appellant to pay customs duty on the enhanced value that was accepted by the appellant. It is more than apparent that after having accepted the enhanced value and after having paid customs duty and after having received the out of charge orders and after having cleared the goods, that the appellant filed the appeals before the Commissioner (Appeals) to challenge the enhancement of the value of the goods. 15. As noted above, it is because of the letters submitted by the appellant that the goods were cleared after the appellant deposited the requisite customs duty on the enhanced value. There was no reason for the appellant to pay the customs duty on the enhanced value if the appellant was actually contesting the enhanced value and had not submitted any letters accepting the enhanced value. 16. A chart containing Customs Appeal Number, Bill of Entry Nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/52569/2019 7299781 20.07.2018 25.07.2018 25.07.2018 15. C/52570/2019 7299793 20.07.2018 27.07.2018 28.07.2018 16. C/52571/2019 7257211 18.07.2018 30.07.2018 30.07.2018 17. C/52572/2019 7429175 30.07.2018 09.08.2018 10.08.2018 18. C/52573/2019 7257259 18.07.2018 01.08.2018 01.08.2018 19. C/52574/2019 7256860 18.07.2018 01.08.2018 01.08.2018 20. C/52575/2019 7299818 20.07.2018 31.07.2018 01.08.2018 21. C/52576/2019 7678583 17.08.2018 29.08.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/52629/2019 8115690 19.09.2018 24.09.2018 25.09.2018 38. C/52630/2019 8195623 25.09.2018 26.09.2018 26.09.2018 39. C/52655/2019 8182085 24.09.2018 01.10.2018 24.09.2018 40. C/52656/2019 8095885 18.09.2018 24.09.2018 25.09.2018 41. C/52657/2019 8056815 15.09.2018 24.09.2018 25.09.2018 42. C/52659/2019 8089709 17.09.2018 19.09.2018 20.09.2018 43. C/52660/2019 7845115 30.08.2018 10.09.2018 10.09.2018 44. C/52661/2019 8443534 13.10.2018 16.08.2018 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.06.2018 13.07.2018 61. C/52498/2019 7075587 04.07.2018 18.07.2018 62. C/52499/2019 7075584 04.07.2018 18.07.2018 63. C/52500/2019 7089403 05.07.2018 18.07.2018 64. C/52501/2019 7026477 30.06.2018 19.07.2018 65. C/52502/2019 7107473 06.07.2018 24.07.2018 66. C/52503/2019 7006914 29.06.2018 24.07.2018 67. C/52504/2019 7008465 29.06.2018 28.07.2018 68. C/52505/2019 2063210 03.07.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.08.2018 85. C/52522/2019 7346406 24.07.2018 07.08.2018 86. C/52523/2019 2305961 21.07.2018 08.08.2018 87. C/52524/2019 7262581 18.07.2018 06.08.2018 88. C/52525/2019 7257175 18.07.2018 06.08.2018 07.08.2018 89. C/52526/2019 7257208 18.07.2018 06.08.2018 90. C/52527/2019 7294941 20.07.2018 07.08.2018 91. C/52528/2019 7294936 12.07.2018 03.08.2018 92. C/52529/2019 7178317 29.06.2018 31.07.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1(iii)(a) provides that the proper officer can have doubts regarding the truth or accuracy of the declared value if the goods of a comparable nature were assessed at a significantly higher value at about the same time. 20. Explanation (1)(i) to rule 12 of the Valuation Rules, however, provides that the rule only provides a mechanism and procedure for rejection of declared value and does not provide a method for determination of value and if the declared value is rejected, the value has to be determined by proceeding sequentially in accordance with rules 4 to 9. 21. In Century Metal Recycling Pvt. Ltd. vs Union of India [2019 (367) ELT-(SC)] , the Supreme Court summarized the provisions of rule 12 of the Valuation Rules and the observations are as follows : 15. The requirements of Rule 12, therefore, can be summarised as under : (a) The proper officer should have reasonable doubt as to the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the goods, as provided for under rule 3(1) of the Valuation Rules, since none of the conditions stipulated in the proviso to sub-rule (2) of rule 3 were attracted and in any case, if the declared value could not be determined under sub-rule (1) of rule 3, it was required to be determined by proceeding sequentially through rules 4 to 9. 23. Rule 3 of the Valuation Rules is, therefore, reproduced below: Rule 3. Determination of the method of valuation.- (1) Subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of rule 10; (2) Value of imported goods under sub-rule (1) shall be accepted: Provided that (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which (i) are imposed or required by law or by the public authorities in India; or (ii) limit the geographical area in which the goods may be resold; or (iii) do not substantially affect the value of the goods; (b) the sale or price is not subject to some condition or consideration for which a value cannot be determined in respect of the goods being valued; (c) no part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly given consent to the value proposed by the Revenue and stated that it did not want any show cause notice or personal hearing, it was not necessary for the Revenue to establish the valuation any further as the consented value became the declared transaction value requiring no further investigation or justification. Paragraph 5 of the decision is reproduced below: 5. We have considered the contentions of both sides. We find that whatever may be the reasons, the appellant expressly gave its consent to the value proposed by Revenue and expressly stated that it did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the consented value in effect becomes the declared transaction value requiring no further investigation or justification . To allow the appellant to contest the consented value now is to put Revenue in an impossible situation as the goods are no longer available for inspection and Revenue rightly did not proceed to further collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of loaded value of the goods as determined in the presence of their Representative/Special Attorney and paid the duty thereon accordingly. [emphasis supplied] 28. In Guardian Plasticote., the Tribunal after placing reliance on the decision of the Tribunal in Vikas Spinners, also observed as follows : 4. The learned Advocate also cites the decision of the Tribunal in the case of M/s. Vikas Spinners v. C.C., Lucknow [2001 (128) E.L.T. 143 (Tri.-Del.)] - in support of his arguments. We find that the said decision clearly holds that enhanced value once settled and duty having been paid accordingly without protest, importer is stopped from challenging the same subsequently. It also holds that enhanced value uncontested and voluntarily accepted, and accordingly payment of duty made discharges the burden of the department to establish declared value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. 34. In Century Metal Recycling Pvt. Ltd. vs Union of India [2019 (367) E.L.T. 3 (S.C.)] , the Supreme Court again emphasized what was stated in Sanjivani Non-Ferrous Trading. 35. In Guru Rajendra Metalloys India Pvt. Ltd. vs C.C.-Ahmedabad, Gujarat [Customs Appeal No. 12338 of 2019 decided on 29.05.2020] , the enhancement that was made was found to be not in consonance with the consent letter given by the appellant. This decision would also, therefore, not come to the aid of the appellant. 36. In M/s Sunland Alloys vs C.C.,- Ahmedabad [Customs Appeal No. 12505 of 2019 decided on 01.06.2020] , the Tribunal found that the assessing authority had reassessed the Bills of Entries by enhancing the value not on the basis of the any material evidence but on the basis of Director General of Valuation guideline letter dated 15.11.2018. The Tribunal held that the assessing officer should have followed the provisions of the Valuation Rules and should not have made the reassessment only on the basis of the Director General of Valuation guideline. The reason would, therefore, not help the appellant. 37. There is, therefore, no good reason to interfere with the orders passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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