Custom, Excise & Service Tax Tribunal
Seatrans Marine Pvt Ltd vs Bhubaneswar(Preventive) on 25 June, 2024
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No.75419 of 2019
(Arising out of Order-in-Appeal No.125/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
M/s. Seatrans Marine Pvt.Ltd.
(Plot No.A/48, Unit No.III, Kharvel Nagar, Bhubaneswar-751001, Odisha.)
...Appellant
VERSUS
Commissioner of Customs (Preventive), Bhubaneswar
.....Respondent
(Central Revenue Building, Rajaswa Vihar, Bhubaneswar, Odisha.)
WITH
(i) Customs Appeal No.75420 of 2019 (M/s. Seatrans Marine
Pvt.Ltd. vs. Commissioner of Customs (Preventive),
Bhubaneswar); (ii) Customs Appeal No.75421 of 2019 (M/s.
Seatrans Marine Pvt.Ltd. vs. Commissioner of Customs
(Preventive), Bhubaneswar); (iii) Customs Appeal No.75423 of
2019 (M/s. Seatrans Marine Pvt.Ltd. vs. Commissioner of
Customs (Preventive), Bhubaneswar); (iv) Customs Appeal
No.75426 of 2019 (M/s. Seatrans Marine Pvt.Ltd. vs.
Commissioner of Customs (Preventive), Bhubaneswar); (v)
Customs Appeal No.75428 of 2019 (M/s. Seatrans Marine
Pvt.Ltd. vs. Commissioner of Customs (Preventive),
Bhubaneswar); (vi) Customs Appeal No.75429 of 2019 (M/s.
Seatrans Marine Pvt.Ltd. vs. Commissioner of Customs
(Preventive), Bhubaneswar); (vii) Customs Appeal No.75430 of
2019 (M/s. Seatrans Marine Pvt.Ltd. vs. Commissioner of
Customs (Preventive), Bhubaneswar); (viii) Customs Appeal
No.76678 of 2019 (M/s. Seatrans Marine Pvt.Ltd. vs.
Commissioner of Customs (Preventive), Bhubaneswar); (ix)
Customs Appeal No.76679 of 2019 (M/s. Seatrans Marine
Pvt.Ltd. vs. Commissioner of Customs (Preventive),
Bhubaneswar);
2
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
(i) (Arising out of Order-in-Appeal No.128/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(ii) (Arising out of Order-in-Appeal No.131/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(iii) (Arising out of Order-in-Appeal No.127/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(iv) (Arising out of Order-in-Appeal No.130/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(v) (Arising out of Order-in-Appeal No.126/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(vi) (Arising out of Order-in-Appeal No.129/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(vii) (Arising out of Order-in-Appeal No.132/CUS/CCP-GST/2018 dated 30.11.2018
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(viii) (Arising out of Order-in-Appeal No.174/CUS/CCP-GST/2019 dated 29.04.2019
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
(ix) (Arising out of Order-in-Appeal No.171/CUS/CCP-GST/2019 dated 26.04.2019
passed by Commissioner(Appeals), GST, CS & Customs, Bhubaneswar.)
APPEARANCE
Shri Rahul Tangri & Ms. Udita Saraf, both Advocates for the Appellant (s)
Shri S.Debnath, Authorized Representative for the Revenue
CORAM: HON'BLE SHRI R. MURALIDHAR, MEMBER(JUDICIAL)
HON'BLE SHRI RAJEEV TANDON, MEMBER(TECHNICAL)
FINAL ORDER NO. 76260-76269/2024
DATE OF HEARING : 25.06.2024
DATE OF DECISION : 25.06.2024
Per : RAJEEV TANDON :
The appellant is engaged as a shipping agent of M/s. ACT
Infraport Ltd., Gujarat, who chartered various vessels for discharge of
3
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
import cargo. After completion of requisite discharge of the import
cargo, the chartered vessels were converted from 'foreign run' to
'coastal run' for carriage of coastal cargo i.e. iron ore in bulk. The
appellants in the present case are aggrieved by the assessment orders
passed by the lower authorities whereby final assessments made were
reopened to include certain notional charges and duty said to be
payable thereon, confirmed.
2. The tables below give a snapshot of the Bills of Entry filed and
assessed. It follows up with statistical details of the final assessment
done, Orders-in-Original and Orders-in-Appeal issued in respect of the
ten cases concerned with the present appeals:-
Table-I
Appeal No. C/75419/2019 C/75420/2019 C/75421/2019 C/75423/2019
(1) (2) (3) (4)
Bills of Entry 343/HC/2014-15 528/HC/2014-15 149/HC/2014-15 192/HC/2015-16
dated 27.08.2014 dated 09.12.2014 dated 10.06.2014 dated 05.10.2015
Final 31.08.2015 01.09.2015 01.09.2015 19.11.2015
Assessment
Order-in- 30.11.2018 30.11.2018 30.11.2018 30.11.2018
Appeal
Order-in- 29.12.2017 29.12.2017 29.12.2017 29.12.2017
Original
SCN 29.08.2016 29.08.2016 29.08.2016 29.08.2016
Refund 2,55,189/- 2,58,506/- 4,68,162/- 2,00,787/-
Table-II
Appeal No. C/75426/2019 C/75428/2019 C/75429/2019 C/75430/2019
(5) (6) (7) (8)
Bills of Entry 100/HC/2013-14 491/HC/2014-15 685/HC/2014-15 290/HC/2014-15
dated 11.06.2013 dated 17.11.2014 dated 26.03.2015 dated 31.07.2014
Final 01.09.2015 02.09.2015 01.09.2015 01.09.2015
Assessment
Order-in- 30.11.2018 30.11.2018 30.11.2018 30.11.2018
Appeal
Order-in- 29.12.2017 29.12.2017 29.12.2017 29.12.2017
Original
SCN 29.08.2016 29.08.2016 29.08.2016 29.08.2016
Refund 4,39,064/- 1,28,065/- 94,416/- 2,17,772/-
Table-III
Appeal No. C/75678/2019 C/75679/2019
(9) (10)
Bills of Entry 575/HC/2013-14 208/HC/2013-14
dated 18.03.2014 dated 18.03.2014
Final 02.09.2015 01.09.2015
Assessment
Order-in-Appeal 24.09.2019 26.04.2019
Order-in- 25.01.2018 25.01.2018
4
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
Original
SCN 07.04.2017 07.04.2017
Refund 8,24,820/- 6,92,199/-
3. Upon completion of the formalities and the conversion of the
vessel to coastal run, the aforesaid Bills of Entry were filed by the
appellant for payment of duty on bunkers, provisions and stores, which
were meant to be consumed during the course of coastal voyage. As
evident from the three tables in para 2, the subject Bills of Entry were
initially assessed provisionally. The appellants have informed that duty
as determined by the authorities was paid by them under protest, since
the value of fuel oil and diesel oil consumed during coastal run was
required to be determined by the authorities on the basis of bunker
supplier price at which such goods were sold by Indian Oil Corporation
Limited (IOCL) at Indian ports to other facilities in India.
4. Shri Rahul Tangri, Ld.Advocate for the appellant submits that
upon finalization, the department took the IOCL price as the basis for
final assessment of the bunker fuel and therefore they had paid
differential duty as mentioned in the final assessment order for each of
the Bills of Entry. It is for this reason that the appellants have indicated
the amount of refund of excess duty paid by them, in the course of the
assessment proceedings.
5. The appellant submits that as the department had finalized the
aforesaid Bills of Entry without inclusion of notional freight @ 20%, the
notional insurance cost @ 1.125% and notional landing charges @1%
on the IOCL's price (referred supra) therefore the assessment was re-
opened by the department and show cause notice issued to them on
29.08.2016 and 07.04.2017. Vide the said two show cause notices the
appellants were charged upon for contravention of Rule 10(2) of the
Customs Valuation (Determination of Value of Imported Godos) Rules,
2007 read with section 14(1) of the Customs Act, 1962 and differential
duty demanded for the aforesaid notional charges not included, along
with interest as applicable. Following due process of law, the Revenue
5
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
has thus confirmed the duty liability on account of above. Aggrieved by
the same, the appellant has filed the instant appeals.
6. It is the case of the appellant that the department ought to have
adopted contemporaneous import value as available on NIDB for
finalization of the said Bills of Entry and therefore such re-assessment
should have been based on contemporaneous import values and any
further accretion to the IOCL price is not tenable and violative not only
of the Valuation Rules and judicial precedence. The appellant submits
that the issue is no more res integra and in their own case
contemporaneous import values have been adopted. Towards this end
the appellant has placed on record and brought to our notice the
Tribunal's Miscellaneous Order No.75069/2024 dated 20.02.2024 in
Customs Appeal No.76178 of 2019 allowing the rectification of Final
Order No.77295/2023 dated 10.10.2023 and directing the adjudicating
authority to determine the assessable value of fuel cost based on NIDB
data. The Tribunal in the said case had held as under:-
"8. After going through the above details, we find that an apparent
error has occurred while the Final Order was passed.The appellant had
made a specific submission that taking the IOCL price in the instant
case cannot be the basis of valuation of the imported goods under the
Customs Valuation Rules. We find that this was also noted in our Final
Order at paragraph 2, page 3: -
"Thus, taking the IOCL Price in the instant case cannot be the
basis of valuation of imported goods under the Customs
Valuation Rules."
9. In respect of the IOCL selling price taken as the cost price of
fuel, we find that on earlier occasions, this issue has reached the
Commissioner (Appeals) in the following cases: -
(i) O/A No. 16-29/CUS/CCP/202 dated 23.02.2022
(ii) O/A No. 160-172/CUS/CCP/202 dated 17.12.2021
6
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
(iii) O/A No. 112-159/CUS/CCP/2021 dated 16.12.2021
10. In the Orders-in-Appeal referred to, the Commissioner (Appeals)
has held as under: -
"20. In view of my above findings and discussions, all the
impugned 48 assessment orders are set aside and I allow the
Appeals by remanding to the original Assessing Authority for
reassessment and re-determination of the assessable value
following Customs Valuation (Determination of Price of Imported
Goods) Rules, 2007 sequentially from Rule 4 to Rule 9, as
discussed supra, on the basis of NIDB data."
11. It is seen that the Department Official himself has taken a view
that for arriving at the fuel price, the NIDB data is required to be
followed and accordingly, he has remanded the matter to the lower
authority.
12. On a specific query as to whether the Department has preferred
any appeal against the said Commissioner (Appeals) order, the fact
could not be ascertained from the Revenue side.
13. Taking these facts into account, we remand the matter to
the adjudicating authority for the limited purpose of arriving at
the value of fuel cost based on the NIDB data.
14. Insofar as addition of other elements like freight,
insurance, landing charges, etc., we have already held that the
same are not required to be added.
15. In view of our above discussion, we allow the appeal partly and
remand the matter to the adjudicating authority with the specific
direction contained at paragraph 16 (B) of this Order.
16. The revised Order to read as under: -
(A) By following the decision cited above, we hold that
the method of valuation of the Revenue is not proper. The
elements of freight and insurance and Landing charges
7
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
need not be added again as the same have already been
included in the selling price of IOCL.
(B) The price of IOCL fuel to be ascertained on the basis
of NIDB data.
17. The petition for rectification of mistake stands allowed."
(emphasis supplied)
7. In this regard we find merit in the plea taken by the appellant. It
is not only the aforesaid case of the appellant, but in a series of cases
this Tribunal has followed the adoption of NIDB data for purpose of
assessment. The following decisions can be adverted into in this
regard:
a) Rajasthan Glass House v. Commissioner of Customs, Kolkata
[2019 (365) E.L.T. 159 (Tri.-Kolkata)]
b) SSK Impex Pvt.Ltd. v. Commissioner of Customs, Hyderabad
[2018 (363) E.L.T. 916 (Tri.-Hyd.)]
c) KVS Traders v. Commissioner of Customs, Jamnagar (Prev)
[2023 (385) E.L.T. 390 (Tri.-Ahmd.)]
d) H.S. Chadha v. Commissioner of Customs (Prev.), New Delhi
[2021 (378) E.L.T. 193 (Tri.Del.) affirmed
(2023) 3 Centax 195 (SC)]
8. In so far as the question of inclusion of freight, inclusion of
landing charges on notional basis for the determination of assessable
value is concerned, we do not subscribe to the said proposition, as
such elements are inclusive of in the IOCL's sale price and invite
reference to the Tribunal's decision in the case of Sical Logistics Ltd.
vs. Commr. of C.Ex., Cust. & S.T., Bhubaneswar-I [2019 (369)
E.L.T. 1104 (Tri.-Kolkata)], wherein by an elaborate order, the
Tribunal had categorically ruled out inclusion of the said charges. The
relevant paras of the said order are reproduced hereunder for ready
reference:-
"8. The dispute on valuation has arisen in respect of value to be
adopted for the purposes of payment of Customs duty on the bunker,
which remains in the vessels at the time of its conversion from foreign
8
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678
& 76679 of 2019
run to coastal run. In the absence of any transaction value, the
Customs authorities proceeded to determine the value to be adopted
for such payment of Customs duty in terms of Customs Valuation
Rules, 1988. The lower authorities have taken the view that Rule 9
comes into play and Rule 9(2) mandates addition of (a) the cost of
transport of the imported goods to the place of importation, (b)
loading, unloading and handling charges associated with delivery of
the imported goods at the place of importation, and (c) the cost of
insurance.
9. The claim of the appellant is that the above Rule will not come into
play in the circumstances of the present case inasmuch as IOCL price
declared by them has already included the elements of freight,
insurance and landing charges. To this effect, the appellant has also
submitted a certificate issued by IOCL.
10. We find that the issue is a recurring one and for the earlier
period, the same first appellate authority i.e. Commissioner (Appeals),
had decided in favour of the appellant. It is further submitted that the
order passed by the Ld. Commissioner (Appeals) for the earlier period
dated 20-2-2013, stands accepted by the Customs Department.
11. We have carefully perused the cited order of the Commissioner
(Appeals) and note that the Commissioner (Appeals) had taken the
view that the determination of value on the basis of Rule 9, is not
justified. Further, he has taken the view that the valuation may be
appropriately decided on the basis of Rule 7 of the Valuation Rules. His
observations are reproduced below with our approval :
.................................
It would be seen from above that under the deductive valuation method the value of identical/similar goods sold in India is adopted. Following the above principle, the appellant has declared the price on the basis of bonded bunker price as notified in IOC price list for adoption at various locations in India, namely Kolkata, Haldia and Paradeep. The appellant has stated that the IOC prices are adopted for 9 Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019 assessment of bunkers at other ports as a matter of practice it has submitted a few evidences to this effect. It is obvious that the price mentioned in the said IOCL price list is the price at which bunkers are supplied at these locations in India, in fact, it also includes local charges levied in India such as entry tax, delivery charge, State entry tax, sales tax, etc. It also includes barge charges at different Indian Ports, wherever applicable. Therefore, to presume that the prices specified in the said price list do not include freight and insurance charges for its first importation into India and therefore, needs to be loaded for such notional charges as directed under Rule 9(2) is not correct. The Valuation Rule 7, does not envisage that the prices adopted locally will have to be considered as international price, and freight, insurance, landing charges, etc., have to be included thereto to arrive at assessable value. On the contrary, a careful reading of Rule 7 would make it clear that it suggests certain deductions from the available price of goods sold in India, because such prices would already have suffered freight, transportation, insurance, duty elements, etc., specifically under Rule 7(1)(ii) "the usual costs of transport and insurance and associated costs incurred within India"
have been identified as some of the relevant deductions. Therefore, having agreed that in the instant case valuation is to be resorted to under Rule 7 of the Valuation Rules, it will not be correct to suggest addition of International freight @ 20% and/or insurance @1.125% as directed in the impugned order. Needless to state that in all the 3 circumstances prescribed under Rule 7 of the Valuation Rules, due allowance has been prescribed for the value added by processing and the deductions provided for in terms of items (i) to (iii) of sub-rule (1) of Rule 7 of Valuation Rules."
12. By adopting the earlier order of the Commissioner (Appeals), we find no basis for taking a different view.
13. In the result, the impugned order is set aside and the appeal is allowed."
(emphasis supplied) 10 Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019
9. To the said ratio is also the decision of this Tribunal in the case of Commr. of Cus. (Airport & Admn.), Kolkata vs. Jet Airways (India) Ltd [2020 (372) E.L.T. 596 (Tri.-Kolkata)]. Suffice to say that no extra notional charges were required to be added in the first instance even if the department were to adopt the IOCL's sale price as applicable for determination of assessable value of stores and bunkers during the course of 'coastal run'.
10. The Ld. Authorized Representative for the department has submitted that the first question associated in the matter has already been settled and the show cause notices were issued to the appellant only on the aspect of notional inclusion of freight & insurance to IOCL's price. We are in disagreement with the said proposition and hold that an assessment if re-opened relegates itself to the original status and would be considered as open for all purposes enabling either of the two sides to raise questions with regard to all aspects of the assessment process. Thus, in the present scenario though the provisional Bills of Entries were filed declaring the IOCL's sale price of stores and bunkers which form the basis of finalization on the basis of actual consumption thereof, having re-opened the subject matter, it is now open for either of the two sides to refer to and raise issues to any aspect of related assessments. In the case of Lili foam Industrise (P) Ltd. vs. Collector of C.Ex. [1990 (46) ELT 462 (Tribunal)] similar stance has been taken when the Tribunal observed as under:
"24. We have already held that the value of the top skin, bottom skin, side skin and the shreddings are to be increased. The Learned Departmental Representative, during the course of the arguments, submitted that the proceedings in the instant case do not call for a finding on the rate of duty applicable on the side skin, bottom skin, top skin and the shreddings. He argued that the appellants had paid duty according to the approved classification list and the present proceedings cannot be used by them to question the correctness of the rate of duty applied. However, we find that the appellants had raised the issue of classification before the Collector and the Collector dealt 11 Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019 with the same. Also, even though an assessee may not contest the correct rate of duty on a commodity cleared by him earlier, whenever the Department seeks to reopen the assessment and demands differential duty for whatever reasons, it is open to the assessee to contest the demand of the higher differential duty with an argument that the rate of duty originally applied was wrong. Even if the allegations against them in the proceedings are found to be correct the quantum of differential duty to be paid by them can be questioned. The Tribunal simply cannot shut out such an argument of the appellant on the ground that he has not raised the dispute regarding the rate of duty until the proceedings are initiated against him. After all the Department seeks to rely on Section 11A of the Central Excises and Salt Act for demanding differential duty. The demand of differential duty can arise only when the Department correctly determines the duty payable by an assessee and the duty actually paid by him earlier. The correct quantum of duty payable by an assessee, in cases where the goods are subjected to ad valorem rate of duty, depends on the value of the goods and also the rate of duty. Therefore, determination of the correct rate of duty for the goods on which differential duty is demanded is the first step before quantifying the demand. We accordingly over-rule the objection raised by the learned Departmental Representative that the appellant should not be permitted to raise the dispute regarding the determination of rate of duty."
(emphasis supplied)
11. This Tribunal in the case of Decora Ceramics Pvt.Ltd. vs. Collector of Central Excise, Rajkot [1998 (100) E.L.T. 297 (Tribunal)], had permitted the consideration of the question of differential duty demand upon reopening of the assessment process. The Tribunal's finding in the said case to the said effect are reproduced below:
"13. How is the extent of 'duty short levied' to be determined? This can be done only by examining the various elements which were taken into consideration in originally determining the assessable value and rate of duty and verifying if there were omissions or errors committed.12
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019 Assessable value and duty have to be recalculated after rectifying the errors and supporting the omissions. This is also subject to the mandate of Section 4 of the Act and particularly of sub-section (4) of Section 4. Thus correct duty payable on the correct assessable value can be arrived at. This amount of duty less the duty paid originally would be the short-levied duty which can be demanded under Section 11A of the Act. Thus determination of quantum of short-levied duty also involves recomputation of correct assessable value on the basis of true and correct wholesale price and legitimate deductions as per the provisions of Section 4 and adoption of correct rate of duty. It may be that the statutory authority detected an error in an element having a bearing on the assessable value or rate of duty and proposes determination of correct assessable value and duty and demand of such determination, the authority failed to discover another or other errors committed in the original determination of assessable value or duty and repeats the errors. It must be open to the assessee, in such circumstances, to point out such error. If such errors are pointed out, cognizance thereof must be taken by the authority whose function is to compute the correct assessable value and duty and the correct amount of short-levied duty. This function of the authority cannot be avoided merely because the assessee himself had earlier committed an error at the stage of filing classification list or price list or at any other stage and had failed to discover the error or to file refund claim within the time allowed by law. It is the function and duty of the statutory authority to determine the amount of duty short-levied. This exercise of determining the correct amount of duty short-levied cannot be stultified by the failure of the assessee to file refund claim within the time allowed by law. The finality brought about by the failure to file a valid refund claim is affected by the invocation of Section 11A by reopening the determination of assessable value and quantification of duty payable. We are, with respect, in agreement with the view expressed in Krishna Industrial Chemicals Ltd., 1997 (72) ECR 346 (T) = 1997 (21) RLT 853 (T), Lili Foam Industries (P) Ltd., 1990 (46) E.L.T. 462 (T) and Bakeman's Home Products Pvt. Ltd., 1997 (95) E.L.T. 278 (T)."13
Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019
12. On aforesaid line has been the consistent stance of the Tribunal and the following cases can be cited by way of adherence to consistency in law :
Bakeman's Home Products Pvt.Ltd. v. CC, Bombay [1997 (95) E.L.T. 278 (Tribunal);
Sunland Metal Recycling Industries v. CC-Kandla [2919 (10) TMI 113-CESTT Ahmedabad] Agarwal Metals & Alloys v. CC, Kandla [2021 (378) E.L.T. 155 (Tri.-Ahm)]
13. Under the circumstances, we are of the view that since contemporaneous import price is available on NIDB data, the same has to form the basis for determination of the assessable value of bunkers and stores consumed during the coastal voyage. The adoption of IOCL's sale price for purpose of determination of the assessable value of bunkers and stores cannot form the basis as held by this Tribunal in the appellant's case referred to (supra). (Final Order No.77295/2023 dated 10.10.2023 read with Misc. Order No.75069/2024 dated 20.02.2024 in Customs Appeal No.76178 of 2016). This Tribunal in the case of Rajasthan Glass House v. Commissioner of Commissioner of Customs, Kolkata, referred to in para 7 has further held as under:-
"6. For re-determination of assessable value, the original authority resorted to Rule 8 of Customs Valuation (Determination of Value of Imported Goods) Rules, 1988 after ascertaining that the rules preceding are not applicable. The grounds of appeal do not evidence any material to controvert recourse to Rule 8 and merely contested the rejection of declared value. In the circumstances, there is no reason to interfere with the impugned order and the appeal is dismissed."
14. The appellant has also brought to our notice several copies of final assessment orders of the stores/bunkers consumed during coastal run wherein the department has undertaken finalization based on contemporaneous import value as available in the NIDB database. To that effect they have placed on record for reference the following final 14 Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019 assessment Orders and Orders-in-Appeal of various authorities spread throughout the country.
Final Assessment Order No. - 33/AC/DMR/CONV./2023-24 dated 17.10.2023 passed by Assistant Commissioner, Customs Division, Dhamra Final Assessment Order NO.32/AC/DMR/CONV./2023-24 dated 17.10.2023 passed by Assistant Commissioner, Customs Division, Dhamra.
Final Assessment Order NO.08/AC/DMR/CONV./2023-24 dated 06.10.2023 passed by Assistant Commissioner, Customs Division, Dhamra.
Final Assessment Order NO.21/AC/DMR/CONV./2023-24 dated 11.10.2023 passed by Assistant Commissioner, Customs Division, Dhamra.
Final Assessment Order NO.FA/CONV./PDP/212/2023 dated 24.08.2023 passed by Assistant Commissioner, Paradeep, Customs Division.
Final Assessment Order NO.FA/CONV./PDP/153/2023 dated 22.08.2023 passed by Assistant Commissioner, Paradeep, Customs Division.
Final Assessment Order NO.FA/CONV./PDP/145/2023 dated 18.08.2023 passed by Assistant Commissioner, Paradeep, Customs Division.
Final Assessment Order NO.FA/CONV./PDP/213/2023 dated 24.08.2023 passed by Assistant Commissioner, Paradeep, Customs Division.
Order-in-Appeal No.442/2021 dated 12.10.2021 passed by Commissioner of Customs (Appeals), Bengaluru Order-in-Appeal No.JMN-CUSTM-000-APP-70-23-24 dated 20.07.2023 passed by Commissioner of Customs (Appeals), Ahmedabad.
15. In view of our findings aforesaid, we remand the matter to the original authority for re-assessment of subject Bills of Entry based on contemporaneous import price as available on NIDB database. Needless to say that the said data on which the assessment is proposed to be undertaken shall be shared with the assessee who shall 15 Customs Appeal Nos.75419, 75420, 75421, 75423, 75426, 75428, 75429, 75430, 76678 & 76679 of 2019 be afforded a fair opportunity to present their case before finalization of the subject matter.
16. The appeals are therefore disposed of in the aforesaid terms by way of remand.
(Operative part of the order was pronounced in the open Court.) Sd/ (R. MURALIDHAR) MEMBER (JUDICIAL) Sd/ (RAJEEV TANDON) MEMBER (TECHNICAL) sm