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TMI Blog2024 (3) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... common impugned order vide which 25 appeals, against assessment of 25 Bills-of-entry, have been decided by the learned Commissioner (Appeals), therefore, all 25 appeals are taken up together for discussion and decision vide this order. The details of all 25 Bills-of-entry are given herein below : S. No. Bill of Entry No. & Date Declared Rate (USD per MT) Enhanced Rate (USD per MT) 1 2513389 dt. 24.06.13 365 400 2 2558250 dt. 28.06.13 345 400 3 2763231 dt. 20.07.13 375 400 4 2681741 dt. 11.07.13 355 400 5 2965301 dt. 12.08.13 335 400 6 2965293 dt. 12.08.13 335 400 7 2911180 dt. 05.08.13 358 400 8 2853581 dt. 30.07.13 328 400 9 2840344 dt. 29.07.13 328 400 10 3044951 dt. 20.08.13 315 400 11 3044977 dt. 20.08.13 315 400 12 3078809 dt. 23.08.13 276 400 13 3139198 dt. 30.08.13 295 400 14 3139493 dt. 30.08.13 300 400 15 3156224 dt. 02.09.13 245 400 16 3156222 dt. 02.09.13 290 400 17 3262963 dt. 13.09.13 250 393 18 3343141 dt. 23.09.13 295 393 19 3343143 dt. 23.09.13 295 393 20 3343155 dt. 23.09.13 295 393 21 3343157 dt. 23.09.13 295 393 22 3749272 dt. 08.11.13 280 393 23 3719262 dt. 05.11.13 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontest the correctness of the enhanced transaction value. He also submits that the impugned order is a non-speaking order as the Commissioner (Appeals) has not given findings on the various submissions made by the appellant and therefore, the impugned order being non-speaking, is not sustainable in law. He also submits that the impugned order is in gross violation of principles of natural justice because the Commissioner (Appeals) has relied upon the letter dated 20.05.2014 of the Deputy Commissioner but the copy of the said letter was not given to the appellant to rebut the contents of the same and further, the said letter was obtained behind the back of the appellant. 4.5 The learned Counsel further submits that the Commissioner (Appeals), while acting as a quasi-judicial authority, was not bound by the data of the department of valuation or the letter of the Deputy Commissioner. He ought to have called for the data from the department of valuation, analyzed the data, given an opportunity to the appellant to rebut the same then pass the impugned order after applying his mind to the facts of the case. 4.6 The learned Counsel further refers to the provisions of Section 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76) ELT 743 (Tri. Delhi) wherein the Tribunal has held that NIDB data of contemporaneous import is not reliable as there may be difference in quantity and quality. It has also been held that transaction value must be accepted where the buyer and seller are not related to each other and there is no evidence of any extra financial consideration. 4.9 The learned Counsel further submits that a genuine transaction value cannot be rejected and valuation Rule 10A cannot be invoked on the ground that identical goods have been imported into India at higher price. In this regard, he relies on the following case-laws: * Topsia Estates Pvt Ltd Vs. Commr of Customs (Imprt-Export) - 2015 (330) ELT 799 (Tri-Chennai) * Bayer India Ltd Vs. Commr of Customs, Mumbai - 2006 (198) ELT 240 (Tri-Mumbai) * National Organic Chemicals Limited Vs. Commr of Customs, Kandla - 2009 (279) ELT 454 (Tri-Ahmd) * Speco Industrial Corpn Vs. Commr of Customs, Amritsar - 2003 (157) ELT 284 (Tri-Del.) * Commr of Customs, Chennai vs. Adani Exports Ltd - 1999 (111) ELT 143 (Tribunal) : 2003 (156) ELT A168 (SC) * In RE : Asian Hotels Ltd - 2003 (157) ELT 239 (Commr. Appl.) * CBEC Circular F.No. 467/09/2001-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions: a) Varun Overseas Vs. CC, Delhi-IV - 2011 (272) ELT 579 (Tri-Del.) b) Advanced Scan Support Technologies Vs. CC, Jodhpur - 2015 (326)n ELT 185 (Tri-Del.) c) Varsha Plastics Pvt Ltd Vs. UOI - 2009 (235) ELT 193 (SC) d) Singal Bearing Co Vs. CCE, Delhi-IV - 2013 (293) ELT 284 (Tri-Del.) e) Om Drishian International Ltd Vs. CC, ICD, Tkd New Delhi - 2016 (343) ELT 159f (Del.) f) DJP International Vs. CC, ICD, New Delhi - 2017 (350) ELT 294 (Tri-Del.) 6. We have considered the rival submissions made by both the parties and perused the material on record as well as various judgments relied upon by the both the parties as cited above. 7. We find that the only issue to be decided in this case is whether enhancement based on NIDB data as well as based on contemporaneous import of identical goods and also based on the guidelines issued by the Directorate of Valuation, is legally correct or not? 8. We find that in the present case, when the Bills-of-entry were assessed, the Assessing Officer sought to enhance the values which were accepted by the appellant-importer and enhanced duty was paid and the goods were cleared. But thereafter, the appellant-importer challenged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is accurate and complete in respect of the information disclosed therein, the authenticity and validity of documents filed in support thereof and the import itself being compliant with any restriction or prohibition imposed in relation to those goods by law. 59. Upon the proper officer being satisfied that the goods entered for home consumption are not prohibited and import duty has been paid, it would pass an order permitting clearance of those goods for home consumption. This flows from a reading of Section 47 of the Act. In terms of Sections 48 and 49, an importer is also entitled to warehouse the imported goods after the same have been unloaded at a customs station or even transhipped within 30 days therefrom. The goods can thereafter remain in the warehouse pending clearance for removal. 60. Undisputedly, a self-assessed BoE which is submitted by an importer, if accepted and endorsed by the proper officer, would be deemed to have been duly assessed. This clearly flows from the manner in which the word „assessment‟ has been defined in Section 2(2) of the Act and is in any case, an issue that is no longer res integra, bearing in mind the decision of the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be informed by a degree of objectivity. ....... ....... 78. The key takeaways from the decision in Century Metal Recycling would thus be the reasonable doubt being based on empirical and legally justifiable factors illustratively spelt out in Rule 12, the mandate to record reasons in support of the formation of that opinion and the mandatory requirement of communicating that material to the importer upon request. ....... ....... 84. We find ourselves unable to construe Rule 12(2) as contemplating any concession or waiver at least in explicit terms. All that Rule 12(2) stipulates is that the proper officer would intimate to the importer the grounds for doubting the declared value at its request. It is in the aforesaid context that we would thus have to adjudge whether the CESTAT was correct in holding that the exchange of communications amounted to a waiver or abandonment not just of the right to question and assail the reassessment but to impugn it in further proceedings in accordance with the procedure prescribed under the Act. 85. In our considered opinion, the perceived concession made in respect of the opinion harboured by the proper officer cannot possibly be int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100. Insofar as the aspect of whether the enhancement or reevaluation of the 'declared value' can be based solely on the data available in the NIDB, in Agarwal Foundries, the Hyderabad Bench of the CESTAT had held that the customs authorities would be unjustified in enhancing the declared import values solely on the basis of NIDB data. It emphasized that transaction values cannot be rejected arbitrarily and that the authenticity of importer-issued invoices must be accepted unless discredited on the basis of cogent evidence. ...... ........ 103. The Chennai Bench of the Tribunal in M/s Gypsie Impex vs. Commissioner of Customs [Final Order No. 40131/2024 dated 5.2.2024] addressed the limitations besetting the usage of NIDB data as the sole basis for re- determining transaction values. It is pertinent to note that Rule 10A of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, as analysed by the CESTAT in this decision, was similar to Rule 12 of the 2007 Rules. The CESTAT ruled in favour of the appellant, holding that NIDB data alone would be insufficient for value reassessment without corroborative evidence or contemporaneous import compariso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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