Custom, Excise & Service Tax Tribunal
M/S. Hs International vs Commissioner Of Customs, Ludhiana, ... on 30 November, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I Appeal No. C/6-16/2015, C/53422/2015-DB Date of Hearing : 28.08.2017 Date of Decision : 30.11.2017 [Arising out of Order-in-Appeal No. OIA-ASR-CUMSTM-PRV-APP-183-193-15-16 dated 02.09.2015 and OIA-ASR-CUSTM-PVR-APP-14-15-16 dated 27.04.2015 passed by the Commissioner (Appeals) Central Excise & Customs, Chandigarh] For approval and signature: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) M/s. HS International : Appellant M/s. Golden Lubes Pvt. Limited vs. Commissioner of Customs, Ludhiana, Chandigarh : Respondent
Appearance:
Shri Saurabh Kapoor, Advocate for the Appellant(s) Shri Tarun Kumar & Shri Satyapal, A.Rs. for the Respondent(s) CORAM:
Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No. A/62073-62084/2017 Per : Archana Wadhwa All the appeals are being disposed of by a common order as the issue involved in all of them is identical.
2. As per facts on record, the appellant imported Alloy Wheels as also Car Truck tyres of various brands and filed bills of entries to be assessed on the declared value. The said value declared by the appellant was enhanced by the assessing officers. The appellant paid the duty on the enhanced value and cleared the goods.
3. Subsequently, they filed appeals before Commissioner (Appeals) against the assessment of bills of entries. The appeal was filed on the ground that the Revenue has rejected the declared transaction value, without any reason or any evidence and has enhanced the value by ignoring the declared value of the goods on the basis of invoice, packing list and bill of lading etc. The appellant strongly contended before the Commissioner (Appeals) that the Revenue cannot reject the transaction value without any basis and further the enhancement was done without any evidence or reference to any other contemporaneous imports.
4. The Commissioner (Appeals), while disposing of the appeals found that the assessing authority has rejected the declared value without passing any speaking orders and without intimating any reasons for rejecting the declared value. He accordingly, requested the Deputy Commissioner to intimate the said reasons.
The Deputy Commissioner vide his communication to Commissioner (Appeals), stated that the value was re-determined as per contemporaneous import data and inasmuch the declared transaction value was found to be low and the same was enhanced as per DoV data. Such types of replies were filed in respect of each and every bill of entry. In his further communication dated 27.07.2015, he clarified that as in response to certain queries, the importer had submitted that quality of Alloy Wheels is crome and as such the value was loaded on that basis.
5. Commissioner (Appeals) in his impugned order observed that inasmuch as the appellant accepted the enhanced value and has cleared the goods on payment of duty on the higher assessable value, without challenging the same, they cannot now turn around and question the re-determination of the the transaction value. He accordingly, observed that there is no evidence on record to suggest that the appellant had any reservations over the rejected or re-determined value and enhancement of the assessable value has been accepted even by the G Card Holders in some cases. He observed that by doing so, the appellant had pre-empted themselves to further enquiry into the undervaluation by readily agreeing to the loading of the assessable value. As such, he rejected all the appeals.
6. After hearing both sides, we find that the first issue required to be decided is as to whether clearances of goods by paying customs duty on the higher enhanced assessable value, precludes the assessee from challenging the same before the higher appellate forum. We are not in agreement with the above observation of Commissioner (Appeals). It is a matter of common experience that the importers, clear the goods, by payment of duty on the enhanced value, inasmuch as the goods imported by them are required and cannot be allowed to be retained by the Customs as the same incurr demurrage and other expenses. It is again a fact of common knowledge that settlement of dispute take years and the imported goods cannot be allowed to be deteriorated in quality till the final out-come of the dispute. Inasmuch as the goods imported by the appellant were required in the assessees factory, the same were cleared by them on payment of the duty on enhanced value and this fact by itself cannot be adopted as a ground for resolving the disputed issue of valuation. The fact that the assessed bills of entries were challenged by the appellant before Commissioner (Appeals), by way of filing appeals, is itself indicative of the fact that the appellants were not satisfied with such enhancement and have exercised their right of appeal provided under the statute.
At this stage, we may refer to some precedent decisions of the Tribunal laying down that payment of duty at the enhanced value and clearance of the goods in urgency cannot preclude the assessee from challenging the assessed bill of entry on the sole ground that goods stand cleared at the enhanced value. Specific reference can be made to the Tribunal decision in the case of Commissioner of Customs vs. Ganesh Trading Company 2013 (297) ELT 75 (Tri. Del.). Similarly, in the case of Bayshore Glass Trading Pvt. Limited vs. CC, Kolkata 2002 (148) ELT 1243 (Tri. Kolkata), it was observed that rejection of appeal by Commissioner (Appeals) on the ground that assessee cleared the goods on payment of duty as assessed without protest, cannot be appreciated. Filing of appeal by itself is a protest.
7. As regards the valuation of the goods, we note that admittedly the same stand enhanced, without first rejecting the transaction value. The Revenue has not adduced any evidence to show flow of any under hand consideration to the supplier of the goods. As per the settled law, the transaction value has to be adopted as correct assessable value for the purposes of payment of duty unless the same is proved to be incorrect, on the basis of positive and tangible evidences. Apart from expressing doubt about the correctness of the transaction value, in the present case, the Revenue, upon whom onus is placed, has not produced any evidence to reflect upon the inaccuracy of the transaction value. In such a scenario, we are of the view that transaction value has to be adopted as the correct assessable value.
8. Further, it has been held in number of decisions that enhancement of value cannot be done on the basis of DoV data etc. without first rejecting the transaction value or without adducing any evidence of contemporaneous imports. There is no evidence in the present case to reflect upon the fact that the value agreed between importer and the exporter, does not reflect the correct value. Reference in this regard can be made to the Tribunal decisions in the case of Ventura Impex (P) Limited vs. CC (Import & General) 2016 (338) ELT 759 (Tri. Del.), Marvel Agencies vs. CC, New Delhi 2017 (348) ELT 534 (Tri. Del.), S.K. Dhawan vs. CC, (Import) Mumbai 2016 (344) ELT 436 (Tri. Mum.), Vyapar Industries Limited vs. CC (Import) Mumbai 2016 (343) ELT 825 (Tri. Mum.) and Kuber India vs. CC, Jaipur 2016 (340) ELT 404 (Tri. Del.). In the case of Kuber India, it was observed that payment of duty and clearance of goods on enhanced value in order to avoid delay and demurrage, cannot act as a bar for importer to challenge assessment in appeal. It was further observed that rejecting transaction value by merely saying that it does not represent correct value and seems to be on the lower side without any findings on contemporaneous imports, is not legally sustainable. Further, in the case of Peekay Steel Castings Pvt. Ltd vs. CC, Cochin 2016 (340) ELT 389 (Tri. Bang.) it was observed that enhancement of value by citing certain contemporaneous imports by other importers through different contract entered into, after a month from the date of the contract in the assessees case, is neither proper nor justified and transaction value has to be adopted. In the present case, we note that there is no reference, no disclosure to any contemporaneous imports by the Revenue so as to enhance the value. The Hon'ble Supreme Court in the case of Chaudhary Ship Breakers vs. CC, Ahmedabad 2010 (259) ELT 161 (SC) has observed that price actually paid or payable has to be accepted as transaction value except in cases of exception carved out under the Rules. It is not the Revenues case that those exceptions are available in the present case. In the case of CC, Chennai vs. Pushpanjali Silks Pvt. Limited - 2006 (202) ELT 80 (Tri.), it was observed that in the absence of any contention by the Revenue that any amount over and above, agreed and paid by the importer to supplier or that importer was related to the supplier or the prices paid was influenced by any extra commercial consideration, there can be no valid reason to reject the transaction value under Rule 4(1) of the Customs Valuation Rules.
We actually find that the list is unending and it is almost a settled law that transaction value cannot be ignored based upon the doubts entertained by the Revenue and mere suspicion on correctness of the invoice is not sufficient to reject the evidence of the value of the imported goods. The onus to prove that there was under valuation, lies heavily upon the Revenue and is required to be discharged by production of tangible and positive evidence.
9. Inasmuch as there is nothing in the present appeals, we are of the view that the impugned orders are not sustainable. Accordingly, the same are set-aside and all the appeals are allowed with consequential relief to the appellants.
(Order pronounced in the court 30.11.2017) Devender Singh Member (Technical) Archana Wadhwa Member (Judicial) KL 7 Appeal No. C/6-16/2015, C/53422/2015