Custom, Excise & Service Tax Tribunal
Varaha Infra Ltd vs Commissioner Central Excise &Amp ... on 10 June, 2020
C 52783CUSTOMS EXCISE & SERVICE TAX APPLELLATE
TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO. 4
Customs Appeal No. 52783/2019
Customs COD Application No. 51187/2019
(Arising out of Order-in-Appeal No. 53-54(SM)CUS/JPR/2019 dated 28.02.2019
passed by the Commissioner (Appeals) CGST& Central Excise, Jaipur, Rajasthan)
Appellant
M/s. Varaha Infra Ltd.
Umesh Smriti,
6, Jalan Vilas Scheme,
Paota B Road, Jodhpur
Vs.
Commissioner, Central Goods & Service Tax,
Customs & Central Excise, Jaipur Respondent
Central Excise & Central Goods & Service Tax, NCR Building, Statute Circle, Jaipur (Raj.) WITH Customs Appeal No. 52784/2019 Customs COD Application No. 51188/2019 (Arising out of Order-in-Appeal No. 53-54(SM)CUS/JPR/2019 dated 28.02.2019 passed by the Commissioner (Appeals) CGST& Central Excise, Jaipur, Rajasthan) Appellant M/s. Varaha Infra Ltd.
Umesh Smriti, 6, Jalan Vilas Scheme, Paota B Road, Jodhpur Vs. Commissioner, Central Goods & Service Tax, Customs & Central Excise, Jaipur Respondent Central Excise & Central Goods & Service Tax, NCR Building, Statute Circle, Jaipur (Raj.) Present for the Appellant : Shri Vikash Jain, Advocate Present for the Respondent : Shri Sunil Kumar, AR C/52783/2019 CORAM :
HON'BLE MR. C L MAHAR, MEMBER (TECHNICAL) HON'BLE MS. RACHNA GUPTA, MEMBER(JUDICIAL) Date of Hearing : 14/01/2020 Date of Decision : 10/06/2020 FINAL ORDER No. 50684 / 2020 PER C L MAHAR :
The facts in both the appeals are similar and therefore, both are being taken up together for a decision. The facts of the matter are that the appellants had imported bitumen 60/70 packed in iron drums and sought clearance of the same vide Bill of Entry No. 6010496 and 6008830 both dated 15.2.2012 and 6715611 dated 2.5.2012. for clearance of the imported consignment of bitumen 60/70 in the second instance the appellant had also filed 2 Bills of Entry No. 5784450 dated 20.1.2012 and 6313805 dated 21.3.2012 for clearance through ICD Jodhpur. In all these Bills of Entry, the classification of the imported consignment was declared under Customs Tariff Heading 2714 9090, the unit CIF value of the imported consignment was at USD 380 PMT. At the time of import, it was suspected that the imported consignment has been mis-
declared with regard to imported price of the consignment as NIBD data for the similar goods imported during contemporary time period showed the import value of bitumen 60/70 at USD 570 PMT. The goods covered by the above Bills of Entry were assessed provisionally subject to test reports of Central Revenue Laboratory for the samples drawn from the imported consignments.
2. The samples sent for testing confirmed that the imported consignments were of bitumen 60/70. The original adjudicating authority i.e. Deputy Commissioner finalised the provisional 2 C/52783/2019 assessment of the imported consignment accepting the assessment value of the imported consignment at USD 380 PMT vide following orders:
S. Appeal No. Name of Order-in- Order in Adjudicating No. Appellant Review Original No. authority & date 1 2 4 5 6 3 1 Cus/JD/01/ Deputy Commissioner 03/2012 Final Deputy Commissioner of Customs, Inland of Customs, Inland I/13 Container Depot, dated Assessment Container Depot, Concor, Jodhpur 01.01.2013 order dated Concor, Jodhpur 21.9.12, 26.9.12 & 27.9.12 2 Cus/JD/10/ Deputy Commissioner 03/2013 01/2012-13 AssistantCommissioner of Customs, Inland of Customs, Inland I/13 Container Depot, The dated & 02/2012- Container Depot, Thar dry Port, Jodhpur 21.02.2013 13 both Concor, Jodhpur dated 30.10.2012
3. The original adjudicating authority did not give any finding with regard to the classification of the goods when the Department originally suspected that correct classification of the consignment need to be under Customs Tariff Heading 27132000 instead of 2749090. The Department reviewed the order of the original adjudicating authority and filed an appeal before the Commissioner (Appeals) Jaipur II who vide his order in original No. 10 (OPD) COS-JPR II/2013 dated 29.9.2013 allowed the Departmental appeal. The CESTAT vide its Final Order No. C/A/52313/2014 CU(DB) dated 26.5.2014 remanded the matter back to the Commissioner (Appeals) for re-adjudication giving the following orders:-
"Prima facie reading of para 6, 7 and 8 of the appellate order combinedly throws light that there were two disputes before the learned Commissioner (Appeals) against the appeal of the Revenue before him. In para 6 he recorded that the Department challenged the impugned order on the ground that the adjudicating authority did not give findings on the classification of the impugned goods and also wrongly accepted the lower value of the import. In para 7, he decided the classification. In para 8, he adopted contemporary evidence for enhancing the value. This clearly shows that the appellant is deprived of the process of natural justice. It would be proper for learned Commissioner (Appeals) to issue notice to appellant as to how he proposes to deal with the Revenue's appeal on both counts. Since he has not issued notice to the appellant, but adopted contemporaneous 3 C/52783/2019 evidence and changed classification... the appellant is entitled to the course of natural justice. Granting proper opportunity to the appellant, he shall deal with both the issues in accordance with the law and pass a reasoned and speaking order."
4. In pursuance to the above instructions of this Tribunal, the Commissioner (Appeals) issued a show cause notice dated 28.12.2018 whereunder as per the directions of this Tribunal relying upon the documents provided to the appellants and learned Commissioner (Appeals) vide Order in Appeal No. 53- 54 /SM(Cus)/JPR /2019 dated 28.2.2019 again allowed the appeal of the Department wherein the classification of the imported consignment namely, bitumen 60/70 has been determined under Customs Tariff Heading No. 27132000 and the value of the imported consignment has been ordered to be enhanced from USD 380 PMT to USD 570 PMT. The appellants are before us against the above mentioned Order-in-Appeal.
5. At the outset, it would be relevant to mention that classification of the imported consignment under Customs Heading No. 2713 2000 have not been objected to or contested by the appellant. The only ground of contention is that the value of the consignment should not be increased to USD 570 PMT as other contemporary imports in India has been assessed at USD 380 PMT by the Department itself. The only ground of appeal on which the appellants have sought relief is that there have been certain clearances at ICD Jodhpur as well as ICD Mundra and ICD Ludhiana where the PMT price of bitumen 60/70 have been accepted at USD 380 PMT.
6. We have heard the learned Departmental Representative who has generally supported the findings as given in the impugned Order-in-Appeal.
7. We find that the learned Commissioner (Appeals) has proceeded to decide the issue as per the directions of this Tribunal issuing a detailed show cause notice to the appellant.
4C/52783/2019 However, we find that the grounds of rejection of impugned value i.e. the transaction value have not been delivered in the show cause notice. Though, we find that the value given in two Bills of Entry which have been relied upon by the Commissioner (Appeals) showed a much higher value of the import consignment than declared by the appellant. However, the appellant since very beginning have been contesting that there have been at least 8 contemporary import consignments where the contemporary import price from the same country of original have been accepted at USD 380 MT, the details of which are as follows:
S. BOE No. & Date Goods Quantity (MT) Rate Port of import No. USD 1 21.02.2012 bitumen 60/70 504.848 380 ICD Thar Dry (5784450) Jodhpur 2 15.02.2012 bitumen 60/70 159.60 380 ICD CONCOR (6010496) Jodhpur 3 15.02.2012 bitumen 60/70 79.88 380 ICD CONCOR (6008830) Jodhpur 4 21.03.2012 bitumen 60/70 507.10 380 ICD Thar Dry (6313805) Jodhpur 5 19.04.2012 bitumen 40.10 380 ICD, TKD (6592301) 6 02.05.2012 bitumen 60/70 60.15 380 ICD CONCOR (6715611) Jodhpur 7 13.06.2012 bitumen 60/70 101.42 380 MUNDRA (7098962) 8 21.06.2012 bitumen 60/70 101.43 380 ICD, Ludhiana (7172202)
8. The Commissioner (Appeals) has not dealt with these imports in his Order-in-Appeal. We also find that the show cause notice dated 28.12.2018 issued in pursuance to this Tribunal's order dated 26.05.2014 does not even gave details as to why the transaction value declared by the appellant is not acceptable for the purpose of levy of Customs duty. The Customs Valuation Rules prescribe a specific drill which legally need to be undertaken in case the declared transaction value is not 5 C/52783/2019 acceptable for the purpose of assessment. The show cause notice is bald on these legal issues. We want to mention here that the show cause notice is the foundation on the basis of which any demand can be confirmed as held by Hon'ble Apex Court in case of M/s. Precision Rubber Industries P. Ltd. vs. Commissioner of Central Excise, Mumbai reported under [2016 (334) ELT 577 (SC)]. We also find that the value of imported consignment namely, bitumen 60/70 has been enhanced taking the value @ USD 575 PMT on the basis of Bills of Entry Nos. 5764897 dated 18.01.2012 and 5765063 dated 18.01.2012. Both the clearances under the referred Bill of Entry were through JNCH, Nhava Sheva. However, we take note of the fact that during the contemporary period, the value of the import consignment of bitumen 60/70 was also accepted at USD 380 PMT for the clearances which have been effected from ICDs such as ICD, Jodhpur, ICD, Mundra and ICD Ludhiana and all the imports are during the contemporary time period. We are of the view that since the declared value matches with the already accepted assessable value of the goods at different ICDs, only because two consignments of JNCH, Nhava Sheva were imported at higher prices, same cannot be taken as the contemporary import value of the imported items namely, bitumen 60/70 for rejection of the transaction value of the imported consignments when similar value of the identical goods have been accepted by the Department. We also rely on the decision of Hon'ble Supreme Court in case of M/s. Paul Industries (India) vs. Union of India reported under 2004 (171) ELT 299 (SC), wherein it has been held that:
"4. .............In this regard, learned Senior Counsel appearing on behalf of the appellants has placed reliance upon Rule 5(3) of the Customs Valuation Rules, 1988 which lays down that, "in applying this rule, if more than one transaction value of identical goods is found, the lowest such value shall be used to determine the value of imported goods". It has been submitted that while passing the original order and fixing the duty, the Settlement Commission has not taken into consideration value of lowest transaction value of the identical goods out of several transaction values of the identical goods produced before it.6
C/52783/2019 Learned Counsel appearing on behalf of the Union of India submitted that from the impugned order, it does not appear that this point was raised before the High Court. Be that as it may, the point raised being a pure question of law, we are of the view that the High Court was not justified in refusing to go into the merits of the original order passed by the Settlement Commission."
9. Since declared value match with the lower accepted contemporary value, we feel that there is no ground for rejection of the same.
10. We are, therefore, of the opinion that there is no valid ground for rejecting the transaction value of the imported consignments ands therefore, we find that the impugned order in appeal is without any merit. Accordingly, we set aside the same and both the appeals are allowed.
( pronounced in the open court on 10/06/2020 )
( Rachna Gupta ) ( C. L. Mahar )
Member(Judicial) Member(Technical)
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