Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import), ... vs M/S. Asian Hotel Ltd on 6 September, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/572 & 573/03
(Arising out Order-in-Appeal No. 219 & 220/2003-Mum dated 23.05.2003 passed by the Commissioner of Customs (Appeals), Mumbai)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
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2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
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Commissioner of Customs (Import), Mumbai
Appellant
Vs.
M/s. Asian Hotel Ltd.
Respondent
Appearance:
Shri Sanjay Kalra, JDR for the appellant Shri J.C. Patel, Advocate and Shri Anil Balani, Advocate for the respondents CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 06.09.2011 Date of decision : 06.09.2011 O R D E R No:..
Per: Mr. P.R. Chandrasekharan, Member (Technical) There are two departmental appeals filed against the orders in appeal no. 219 and 220/03 dated 23.5.2003 passed by the Commissioner of Customs, Mumbai I
2. Briefly stated the facts of the case are as follows. M/s Asian Hotel, New Delhi filed five bills of entry during the period from 27.9.2001 to 1.11.2001 for airport clearance of rough marble blocks of Italian origin from M/s Al Jamahir Trading, Dubai and declared a price of US $ 135/MT (FOB) in respect of 3 bills of entry and US $145/MT (FOB) in respect of two bills of entry. The assessing authority issued two show-cause notices both dated 21.9.2001 proposing to revise the value to US $300 to US$310/MT based on the value of contemporaneous imports noticed in Bombay Port. The details of the contemporaneous imports were also indicated in the show-cause notice and it was also stated that value declared by the importer is not true or accurate in terms of Rule 10A of the Customs Valuation Rules, 1988 and therefore, the value of the goods under importation needs to be redetermined under the provisions of sub-rule (1) of Rule 4 read with Rule 5 of the Customs Valuation Rules, 1988. The importer vide letters dated 26.9.2001, 28.9.2001, 11.10.01 and 3.11.2001 agreed to the loading proposed by the customs department and waived personal hearing. In respect of two bills of entry they also waived show-cause notice and personal hearing. Thereafter the adjudicating authority issued two speaking orders, one dated 4.12.2001 and another 5.12.2001 rejecting the declared value under Rule 10A of the Customs Valuation Rules, 1988 and enhanced the declared invoice price under Rule 5 of the Customs Valuation Rules, 1988 on the basis of the price noticed in respect of contemporaneous imports of similar goods. Thereafter the importer filed an appeal before the Commissioner (Appeals) who vide the impugned order set aside the orders in original passed by the adjudicating authority and allowed the appeals. The basis on which the orders have been set aside is that the adjudicating authority did not follow the procedure under Rule 10A(1) of the Customs Valuation Rules, 1988 and also violated the principles of natural justice. The Ld. Commissioner (Appeals) also concluded that the importer submitted certain invoices from the manufacturers and other documents on the basis of which the loading of value done by the original authority was found to be incorrect and accordingly, he set aside the orders of the lower appellate authority. The revenue is in appeal against the said order of the lower appellate authority.
3. Ld. SDR submitted that enough opportunities were provided to the importer for justification of the declared value vis-`-vis the values furnished by the revenue which the importer failed to utilise. Accordingly, notices were issued under Rule 10A proposing to reject the transaction value and load the values on the basis of contemporaneous imports. In reply thereto, the importer accepted the loading of the value and waived personal hearing and the adjudication orders revising the values were passed. The conclusion of the appellate authority that the procedure under Rule 10A was not followed or principles of natural justice were violated is not born out from the records of the case and therefore, the order of the lower appellate authority is bad in law.
4. Ld. counsel for the importer submits that merely because they did not contest the matter before the adjudicating authority does not mean that they have accepted the assessment made by the department and the very fact that they have filed an appeal before the appellate authority indicate that they are disputing the assessment. He further contends that marble blocks are of various varieties and their prices vary widely and therefore a uniform price cannot be adopted by the assessing authority without taking into account the various factors which affects the prices and relied on the judgment of this Tribunal in the case of Margra Industries Ltd. vs. CC New Delhi reported in 2004 (171) ELT 334.
5. Ld. SDR on the other hand submits that without having challenged the assessment proceedings initiated under show-cause notices, the appellant cannot reopen the matter of assessment in the appeal proceedings under Section 130 of the Customs Act, 1962. He relies on the decision of the Tribunal in Rahul Ramanbhai Patel vs. CC(I), Mumbai 2010 (256) ELT 424. He also relies on the judgement of the Royal Enterprises reported in 2008 (231) ELT 318 wherein it is held that value determination following due process of law which remains unchallenged and done with free of consent of assessment cannot be impeached.
6. We have carefully considered the rival submissions. In the instant case we note that the assessing authority has issued show-cause notices to the importer proposing to reject the transaction value under Rule 10A and to revise the assessable value in terms of contemporaneous imports noticed giving details of such imports. In reply thereto, the importer has accepted the proposed loading of value to be done by the department and waived personal hearing in the matter. In one instance, they have waived both the show-cause notice as well as the personal hearing. In other words, it is clear that the importer has consented to the value proposed by the assessing officer without any challenge. Having done so, the importer cannot seek to reopen the matter by way of appeal proceedings before the appellate authority under Section 130. The decision of the Tribunal in the case of Rahul Ramanbhai Patel and Royal Enterprises cited supra supports this view. Further the conclusion drawn in the lower appellate authoritys order that the principles of natural justice have been violated does not seem to have any basis whatsoever. A show-cause notice has been issued to the importer proposing to revise the value and basis of such revision has also been cited in the show-cause notice giving all relevant details. Yet the importer did not challenge the same and readily consented to the proposed revision in value by the department and also waived show-cause notice/personal hearing. Having done so, they cannot turn around and say that principles of natural justice has been violated when sufficient opportunities have been given to them for making submissions, which they failed to do. In the light of the above factual position, the finding of the Commissioner that principles of natural justice have been violated is rather perverse. It is further noticed that though the Commissioner (Appeals) in his order mentions that appellant importer has furnished documentary evidence in support of their claim, he has not discussed any of the details of such invoices in his order nor has he given any categorical findings thereon.
7. In view of the foregoing, we set aside the impugned order passed by the lower appellate authority and restore the orders-in-original passed by the original adjudicating authority and allow the departments appeals.
(Operative part pronounced in Court) (Ashok Jindal) (P.R. Chandrasekharan) Member (Judicial) Member (Technical) SR 5