Custom, Excise & Service Tax Tribunal
New Delhi(Icd Tkd)(Import) vs Tirupati Overseas on 16 December, 2022
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
CUSTOMS APPEAL NO. 52394 OF 2018
(Arising out of Order-in-Appeal No. CC(A) CUS/D-II/ICD TKD/IMPORT/815/2018
dated 25.04.2018 passed by the Commissioner of Customs (Appeals), New Delhi.)
Commissioner of Customs, ...Appellant
New Delhi (ICD TKD) (Import)
Tughlakabad, New Delh-110020
VERSUS
M/s Tirupati Overseas ...Respondent
Shop No. C-I.1, Pocket-1,
Sector-11, Rohini,
New Delhi-110085.
APPEARANCE:
Shri Rakesh Kumar, Authorized Representative of the Department
None for the Respondent
CORAM:
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON'BLE MR.P.V. SUBBA RAO, MEMBER (TECHNICAL)
Date of Hearing/Date of Decision: 16.12.2022
FINAL ORDER NO. 51222/2022
JUSTICE DILIP GUPTA:
The department has filed this appeal to assail the order dated
25.04.2018 passed by the Commissioner of Customs (Appeals), by
which the order dated 17.06.2016 passed by the Joint Commissioner
of Customs rejecting the declared assessable value of the goods
imported and reassessing the same has been set aside and the
appeal has been allowed.
2. Shri Rakesh Kumar, learned authorized representative has
made submissions on behalf of the department but no one has
appeared on behalf of the respondent. It transpires from the order
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sheet that no one had been appearing on behalf of the respondent on
earlier occasions though at times adjournments had been sought by
the learned counsel of the respondent. In such circumstances, the
appeal is being decided on merits.
3. The records reveal that the respondent M/s Tirupati Overseas
had filed a Bill of Entry dated 25.04.2016 for clearance of imported
goods packed in 962 cartons/plastic gunny bags having a gross
weight 25950 Kgs. The value of the goods shown in the invoice was
USD 25339.20. The entry made in the Bills of Entry is as follows:
Table-A
Sr. Description of goods as Total No. of No. of
No. declared in the Bill of Pcs./Weight Cartoons
Entry inkg)
1. Cartoon Tape 840 pieces 42
2. Electric Ballast (choke) 26000 pieces 130
3. Glass Seed Beads 620 kgs 25
4. Hair Bow Raw Accessories 21204 kgs. 645
Articles
5. Mosquito Racket 7200 120
4. The goods were examined by the officers and details of the
physical examination was recorded under a Panchnama dated
28.04.2016. It appeared to the officer that the value of the item at
Serial No. 4 had been mis-declared and mis-classified. Further
investigation was carried out and Deepak Garg, son of Anjani Kumar
Garg, duly authorized by the proprietor, appeared on 09.05.2016
and gave his statement under section 108 of the Customs Act. He
stated that he was ready to pay the differential duty and did not
want any show cause notice to be issued or personal hearing to be
provided and that the matter could be decided by taking a lenient
view. He also stated that the exporter was ready to pay the fine and
penalty on such import. Deepak Garg again gave statements on
09.05.2016 and 13.05.2016 to the same effect. Infact, after going
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through the chart containing the re-determined value on the basis of
the value of contemporaneous imports of similar goods and the NIDB
data, he in the statement recorded on 13.05.2016 accepted the
value and voluntarily agreed to pay the differential customs duty and
again reiterated that the importer did not want any show cause
notice to be issued or personal hearing to be provided.
5. The adjudicating authority, after a careful analysis, rejected the
declared value in terms of rule 12 of the Customs Valuation
(Determination of Value of Imported Goods) Rules 20071 and,
thereafter, proceeded to re-determine the value and passed the
following order:
"14. In view of the above, I pass the following order:-
i) I reject the declared assessable value of Rs.
20,17,145 of the goods imported vide Bill of Entry No.
5017463 dated 25.04.2016 in terms of Rule 12 of
Customs Valuation (Determination of Value of
Imported Goods) Rules, 2007.
ii) Impugned goods which were actually resin/plastic
beads/ articles and not "Hair Bow Raw Accessories
Articles" as declared by the Importer vide Bill of Entry
No. 5017463 dated 25.04.2016 are classifiable under
CTH 39269099 instead of 96159000.
iii) I re-assess the assessable value of the
consignment under Bill of Entry No. 5017463 dated
25.04.2016 from Rs. 20,17,145/- to Rs. 35,14,352/-
in terms of Rule 5 of Customs Valuation
(Determination of value of Imported Goods)
Rules, 2007.
iv) I order for confiscation of the impugned goods
under Section 11(m) of the Customs Act, 1962.
However, I give the importer an option to redeem the
same on payment of Redemption Fine of Rs.
7,00,000/- (Rupees Seven Lakh only) under
Section 125(1) of the Customs Act, 1962;
v) I re-assess Customs duty liability in respect of Bill
of Entry No. 5017463 dated 25.04.2016 as Rs.
1. the 2007 Valuation Rules
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C/52394/2018
10,21,568/- (Rupees Ten Lakh Twenty One
Thousand Five Hundred and Sixty Eight only). As
Rs. 3,43,700/- has already been paid by the importer
at the time of initial assessment of the said Bill of
Entry, I order for recovery of Rs. 6,77,868/- (Rupees
Six Lakh Seventy Seven Thousand Eight Hundred
and Sixty Eight only) from the importer.
vi) I impose penalty of Rs. 2,00,000/- (Rupees Two
Lakh only) on M/s Tirupati Overseas, Shop No. C-1/1,
Pocket-1, Sector 11, Rohini, New Delhi under Section
112 (a/b) of the Customs Act, 1962."
6. Feeling aggrieved, the importer filed an appeal before the
Commissioner (Appeals) who, as noticed above, allowed the appeal
by order dated 25.04.2018. The relevant portion of the order passed
by the Commissioner (Appeals) is as follows:
"I find from the above cited judicial pronouncements
that in respect of classification issue, the evidences
gathered by the Revenue to prove its claim have vital
role. In the present case, the Department‟s whole case
is based on statements dated 09.05.2016 and
13.05.2016 of Sh. Deepak Garg, authorized signatory
of the appellant. However, on perusal of the Order-in-
Original, I find that he agreed to pay differential duties
only after given him to understand the fact by the
investigating authority that the impugned goods is
Resin/plastic beads classifiable under CTH 39269099.
Beside the statements, referred above, I find that there
is no evidence in the impugned Order-in-Original to
deny the appellant‟s claim in this regard.
*****
Accordingly, I hold that there was no mis-
declaration in this regard by the appellant, as far as classification issuer of Hair Bow Raw Accessories Articles is concerned. Therefore, the goods can be considered as Hair bow Raw Accessories Articles falling under CTH 96159000 and not Resin/plastic beads classifiable under CTH 39269099."
(emphasis supplied) 5 C/52394/2018
7. Thereafter, the Commissioner (Appeals) proceeded to determine whether the adjudicating authority correctly rejected the declared value and re-determined it and the observations are as follows:
"In the instant case, the Adjudicating Authority has enhanced the declared value of goods, namely, Hair Bow Raw Accessories Articles after treating it as Resin/plastic Beads on the basis of NIDB data. As already concluded above that there was no mis- declaration on the part of the appellant as far as classification of goods, namely, Hair Bow Raw Accessories Articles is concerned. Therefore, I find that the re-determination of value on the basis of NIDB prices of Resin/plastic beads cannot be made applicable to the impugned goods, i.e. Hair Bow Raw Accessories Articles falling under different Chapter heading of the Customs Tariff Act. I find that the appellant's representative, while recording his statements dated 09.05.2016 and 13.05.2016 has accepted to pay differential Customs duties on the enhanced assessable value re-determined by the Department. However, I find that mere acceptance in the statements are not enough ground to recover the Duty on the enhanced value xxx xxx xxx.
I find that the Department has not adduced any clear and cogent evidence that any additional consideration over and above the transaction value has flown in this case or buyer and seller are related persons."
(emphasis supplied)
8. It is for this reason that the Commissioner (Appeals) set aside the order dated 17.06.2016 passed by the adjudicating authority and allowed the appeal.
9. Shri Rakesh Kumar, learned Authorized Representative of the department has made the following submissions: 6
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(i) The Assessing Officer had reason to doubt the accuracy of the value declared for item at Serial No. 4 in the Bill of Entry submitted by the importer as they were grossly undervalued as compared to the contemporaneous import data and since a categorical statement was made on behalf of the importer under section 108 of the Customs Act that the importer agreed for enhancement of the value as shown in the chart and did not require any personal hearing or a speaking order, the Assessing Officer enhanced the value. Thus, once having accepted the value of the goods it was not open to the importer to challenge the value of the goods, nor was it open to the importer to file an appeal for the reason that the requirement of not passing any speaking order is to reduce litigation;
(ii) The decisions relied upon by the Commissioner (Appeals) are clearly distinguishable on facts, as in the present case, a statement had been made by the importer on various dates voluntarily accepting the enhanced value based on contemporaneous data; and
(iii) The Commissioner (Appeals) was not justified in discarding the statement made on behalf of the importer for the reason that mere acceptance is not good enough to recover the duty and the department should have adduced clear and cogent 7 C/52394/2018 evidence that additional consideration, over and above the transaction value, had flown.
10. The submissions advanced by learned authorized representative have been considered.
11. Section 14 of the Customs Act deals with „Valuation of Goods‟ and is reproduced below:
"Section 14. Valuation of goods.- (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf:
Provided xxxxx xxxxxx xxxxx"
12. It would be seen that section 14 of the Customs Act provides that the transaction value of goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer and the seller of the goods are not related and the price is the sole consideration 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 of accuracy of the value declared in relation to any imported goods, he may ask the importer of receiving such further information, or in the absence of a response of such importer, the proper officer still has 8 C/52394/2018 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 under sub-rule (1).
Explanation.-(1) For removal of doubts, it is hereby declared that:-
(i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9.
(ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers.
(iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include-
(a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed;
(b) the sale involves special an abnormal discount or abnormal reduction from the ordinary competitive price;
(c) the sale involves special discounts limited to exclusive agents;
(d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture of production;
(e) the non declaration of parameters such as brand, grade, specifications that have relevance to value;
(f) the fraudulent or manipulated documents."9
C/52394/2018
13. Rule 12 provides that 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 rule 3(1). Explanation (iii) to rule 12 provides that the proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons, which may include any of the six reasons contained therein, one of which is that there is a significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed.
14. The proper officer doubted the value of the goods declared was high since the contemporaneous data in respect of the goods imported. On being confronted with this contemporaneous data, the authorized person specifically stated that the importer agreed for enhancement of the value of goods and did not desire that any show cause notice should be issued or personal hearing should be provided, as contemplated under section 124 of the Customs Act. He also stated that the importer did not desire that a speaking order, as contemplated under section 17(5) of the Customs Act, should be passed on the Bill of Entry.
15. The relevant portion of section 17(5) of the Customs Act is reproduced below:
10
C/52394/2018 "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, self- assess 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 sub- section (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 an thereupon, the importer, exporter or such other person shall produce such document or furnish such information.
(4) Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods.
(5) Where any re-assessment done under sub- section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be."
16. It would be seen that though in a case where re-assessment has to be done under sub-section (4) of section 17 of the Customs Act, the proper officer is required to pass a speaking order on the re- 11
C/52394/2018 assessment, but if the importer or exporter confirms his acceptance of the re-assessment, a speaking order is not required to be passed.
17. The Commissioner (Appeals), despite a categorical statement made by the importer accepting the enhanced value and not requiring a speaking order observed that this was not sufficient and the department should have adduced clear and cogent evidence that additional consideration, over and above the transaction value, had flown in. The Commissioner (Appeals) also discarded the categorical statements made by Deepak Garg wherein he agreed to pay the differential duty.
18. 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. Sub-section (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.
19. In the present case, as noticed above, the proper officer doubted the truth or accuracy of the value declared by the importer for the reason that contemporaneous data had a significantly higher value. It was open to the importer 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 importer did not do so. On the other hand, the importer specially stated in the statement recorded under section 108 of the Customs Act, after being shown the contemporaneous value, that it 12 C/52394/2018 he agreed that the value of the goods should be enhanced. The importer also specifically stated that it did not want to avail of the right conferred under section 124 of the Customs Act and, therefore, did not want any show cause notice to be issued to or personal hearing to be provided. The importer also specifically stated that he did not want a speaking order to be passed on the Bill of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance
20. It is no doubt true that the value of the imported goods shall be the transaction value of such goods when the buyer and the seller of goods are not related and the price is the sole consideration, but this is subject to such conditions as may be specified in the rules to be made in this behalf. The 2007 Valuation Rules have been framed. A perusal of rule 12(1) indicates that when the proper officer has reason to doubt the truth or accuracy of the value of the imported goods, he may ask the importer to furnish further information. Rule 12(2) stipulates that it is only if 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. 13
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21. In Century Metal Recycling Pvt. Ltd. vs. Union of India2, 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 transactional value on account of truth or accuracy of the value declared in relation to the imported goods.
(b) Proper officer must ask the importer of such goods further information which may include documents or evidence.
(c) On receiving such information or in the absence of response from the importer, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists.
(d) When the proper officer does not have reasonable doubt, the goods are cleared on the declared value.
(e) When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules.
(f) The proper officer can raise doubts as to the truth or accuracy of the declared value on certain reasons which could include the grounds specified in clauses (a) to (f) in clause (iii) of the Explanation.
(g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested.
(h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules.
16. Proper officer can therefore reject the declared transactional value based on certain reasons to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression grounds for doubting the truth or accuracy of the value declared has been explained and elucidated in clause (iii) of Explanation appended to Rule
2. 2019 (367) E.L.T. 3 (S.C.) 14 C/52394/2018 12 which sets out some of the conditions when the reason to doubt exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared."
22. Despite the specific statements made by the importer under section 108 of the Customs Act, it was sought to be contended by the importer in the Appeal filed before the Commissioner (Appeals) that the transaction value of the imported goods alone should have been treated to be the value of the goods, as provided for under rule 3(1) of the Valuation Rules.
23. In this connection, it would be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs. Commissioner of Customs, Jodhpur3, wherein the Tribunal, after making reference to the decisions of the Tribunal in Vikas Spinners vs. Commissioner of Customs, Lucknow4 and Guardian Plasticote Ltd. vs. CC (Port), Kolkotta5, held that as the Appellant therein had 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
3. 2015 (326) ELT 185 (Tri.-Del)
4. 2001 (128) ELT 143 (Tri.-Del)
5. 2008 (223) ELT 605 (Tri.-Kol) 15 C/52394/2018 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 and compile all the evidences/basis into a Show Cause Notice as doing so, in spite of the appellant having consented to the enhancement of value and requested for no Show Cause Notice, could/would have invited allegation of harassment and delay in clearance of goods. When Show Cause Notice is expressly foregone and the valuation is consented, the violation of principles of natural justice cannot be alleged. In the present case, while value can be challenged but such a challenge would be of no avail as with the goods not being available and valuation earlier having been consented, the onus will be on the appellant to establish that the valuation as per his consent suffered from fatal infirmity and such onus has not been discharged. Further, valuation of such goods requires their physical inspection and so re- assessment of value in the absence of goods will not be possible. The case of Eicher Tractors v. Union of India (supra) cited by the appellant is not relevant here as in that case there was no evidence that the assessee had consented to enhancement of value."
(emphasis supplied)
24. In Vikas Spinners, the Tribunal dealing with a similar situation, observed as under:
"7. In our view in the present appeal, the question of loading of the value of the goods cannot at all be legally agitated by the appellants. Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an 16 C/52394/2018 affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5- 1999. After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5- 1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and paid the duty amount on the loaded value of 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)
25. In Guardian Plasticote Ltd., the Tribunal after placing reliance on the decision of the Tribunal in Vikas Spinners, had 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 estopped 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 to be incorrect. In view of the fact that the Appellants in this case have not established that they had lodged any protest and on the contrary their letter dated 21-4-1999 clearly points to acceptance of the 17 C/52394/2018 enhanced value by them, the cited decision advances the cause of the department rather than that of the Appellants contrary to the claim by the learned Counsel."
(emphasis supplied)
26. In BNK Intrade (P) Ltd. vs. Commissioner of Customs, Chennai6, the Tribunal observed as follows:
"2.............. It is also to be noted that the importer had also agreed for enhancement of the price based on contemporaneous prices available with the Department. We, therefore, find no merit in the contention raised in the appeal challenging the valuation and seeking the refund of the differential duty paid by the appellants on enhancement." 35. The following position emerges from the aforesaid decisions of the Tribunal:
(i) When an importer consents to the enhancement of value, it becomes unnecessary for the revenue to establish the valuation as the consented value, in effect, becomes the declared transaction value requiring no further investigation;
(ii) When an importer accepts the loaded value of the goods without any protest or objection, the importer cannot be permitted to deny its correctness; and
(iii) The burden of the Department to establish the declared value to be in correct is discharged if the enhanced value is voluntarily accepted."
27. The Commissioner (Appeals) placed emphasis on the classification of the goods shown as Serial No. 4 in the Bill of Entry and observed that the evidence gathered by the revenue to prove that the goods would fall under a different classification has a vital role. The Commissioner completely loss sight of the fact that Deepak Garg, who had appeared on the behalf of the importer, had specifically stated that the importer accepted the valuation (based on the classification proposed by the department) and also stated that
6. 2002 (140) ELT 158 (Tri.-Del) 18 C/52394/2018 he would pay the differential duty and would not require any show cause notice to be issued or personal hearing to be granted. Despite the categorical statement made by Deepak Garg in the statement recorded under section 108 of the Customs Act, the Commissioner (Appeals) still observed that the department did not adduce any clear and cogent evidence that any additional consideration, over and above the transaction value, had flown. The view taken by the Commissioner (Appeals) is contrary to the aforesaid decisions and, therefore, cannot be sustained.
28. Thus, the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. The order dated 08.05.2018 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside. The appeal is, accordingly, allowed.
(Order dictated and pronounced in the open court) (JUSTICE DILIP GUPTA) PRESIDENT (P.V. SUBBA RAO) MEMBER (TECHNICAL) Sb/JB