Rachna Gupta ORDER
Rachna Gupta, Member (J)
1. Present is an appeal filed being aggrieved of order of Commissioner (Appeals) dated 31st October, 2017.
2. The facts relevant for the disposal of present appeal are that the appellant who is an importer had filed 200 bills of entry during the period w.e.f. 4th September, 2015 to 27th June, 2016 for clearance of their imported goods i.e. high melting scrap and light melting scrap classifying them under Chapter heading 7204 4900 of the Customs Tariff Act, 1975. The Assessing Officer has found the value of these imported goods to be lower than the value of import as per the data available in National Import Database (NIDB). The value was accordingly reassessed. The differential duty was charged and was paid by the appellant. However, he challenged the said re-assessment vide various appeals. Earlier the Commissioner (Appeals), Bhopal had remanded all initial 320 orders back to jurisdictional Assistant Commissioner of Customs to re-assess the bills of entry appealed against and to pass an appealable speaking order after affording the appellant a reasonable opportunity of being heard. For 200 bills of entry thereof appeal was filed twice and for remaining 4 bills of entry, appeal was filed thrice) and common adjudication order in Original No. 14-327 dated 27th April, 2017 was passed upholding the re-assessment by the Revenue. The Commissioner (Appeals) vide its order under challenge has partly allowed the appeal, aggrieved thereof is the present appeal.
3. While arguments of both the ld. Parties have been heard, the appellant submitted that the Department has made the case of under-valuation, but solely relying on the basis of NIDB Data. It is alleged that NIDB Data alone is not sufficient for rejecting the bills of entry of the appellant. It is impressed upon that the Department itself has arrived upon the said conclusion vide order of Commissioner dated 1st August, 2016 where the Commissioner had observed that the assessment of bills of entry on enhanced assessable value has been done by the Customs without citing any reason and without giving the appellant the opportunity to present evidences in their support. It is on the basis of the said observation that the matter was remanded back and order under challenge culminated. The appellant while relying upon Section 14 of the Customs Act has submitted that while re-assessing the bills of entry, the Adjudicating Authority neither cited any reason for rejecting the transaction value nor shown any special circumstances while not adopting the transaction value therein. The Deputy Commissioner vide order dated 01.05.2017 while holding that complete reliance on NIDB data for assessment of metal scrap is not proper has relied upon the metal Bulletin. While adjudicating the appeal against this order, the Commissioner (Appeals) vide its order dated 31.10.2017 again remanded the matter however holding that NIDB data and even the metal Bulletin has wrongly been relied upon by the lower authority. It is impressed upon that another round of litigation as directed vide order under challenge is highly unsustainable. Appeal is accordingly, prayed to be allowed.
4. While rebutting these arguments, ld. D.R. has impressed upon that Directorate General of Valuation, Central Board of Excise and Customs itself has impressed upon at NIDB Data i.e. National Import Data Base as an Electronic Data Base focusing on Customs Valuation and classification aspect of all goods imported at various Customs stations in India. The NIDB data provides instant access to the combined data duly analyzed and flagged by the Directorate of Valuation to Assessing Officers all over India for their use as an effective tools to cheque possible under-valuation and commercial fraud on imported goods implemented in phases starting from November, 2001. It is impressed upon that accordingly, NIDB Data was very much the acceptable data to reject the bills of entry of the appellant. While justifying the order under challenge, it is submitted that remanding the matter will not adversely affect any of the parties irreparably. The appeal is prayed to be dismissed.
5. After hearing both the ld. Counsels, we are of the considered opinion that the bills of entry of the appellant, which initially were 320 in No. and later were reduced to 208 have been held by the Department to be undervalued and differential duty has been demanded, which otherwise has been paid by the appellant. The reasons cited by the adjudicating authority for rejecting the declared transaction value is that the contemporaneous NIDB Data indicates import value, which are higher than the declared value.
6. The mute question for consideration is as to whether NIDB Data has rightly been relied upon by the Revenue. The relevant provision to adjudicate the same is Section 14 of the Customs Act, 1962. According to sub-rule (1) thereof the transaction value are required to be accepted for the purpose of the charging the Customs duty except in the cases where such value is rejected in accordance of sub-rule (2) thereof. In the present case except for NIDB Data Department has no contemporaneous evidence to reflect the correct price. No doubt proviso (iii) to Section 14 of sub-section (1) provides a situation where the proper officer has a reason to doubt the truth or accuracy of the transaction value and the bill of entry can be rejected. However, simultaneously, it is also provided that in case of doubt, the price shall be calculated with reference to the rate of exchange, as in force, on the date on which the bill of entry is presented under Section 46. Apparently and admittedly, there is no such comparison on the part of the Department. The Dy. Commissioner, vide its order dated 1st May, 2017 himself had appreciated that the NIDB Data for the relevant period did not reflect the correct value of the imported goods, since NIDB Data reflects the prices after a lapse of more than a month from the current date. Therefore, complete reliance on NIDB Data for assessment of metal scrap is not proper. Though, the metal bulletin as per CCR/RMS Instructions for the valuation of metal scrap was preferred to be referred but in the order itself it has been mentioned that the metal Bulletin was also not reflecting the exact prices. In some cases the prices reflected in Bulletin were less than the value at which bills of entry were assessed and in some cases the prices reflected in metal Bulletin were higher than the said value. In such circumstances, the reliance upon NIDB Data while rejecting the bills of entry of the appellant is observed as unreasonable. The law has been held by Hon'ble Apex Court in the case of Eicher Tractors Ltd. vs. CCE, Mumbai - MANU/SC/0699/2000 : 2000 (122) ELT 321 (SC) has held that the value according to Section 14(1) of the Customs Act, 1962 shall be taken to be the price at which such or other like goods are originally sold or offered for sale, for delivery at the time and place of importation in the course of international trade. The special circumstances have been statutorily particularized in the Custom Valuation Rules and in absence of these exception, it is mandatory for Customs to accept the price actually paid or payable for the goods in particular transaction. Subsequently also in the case of Choudhary Ship Breakers vs. CC, Ahmedabad - MANU/SC/0882/2010 : 2010 (259) ELT 161 SC, the Apex Court has observed that the price actually paid or payable has to be accepted as transaction value except in the cases of exceptions carved out under the Rules. Recently in Kuber India vs. CC, Jaipur - MANU/CE/0483/2016 : 2016 (340) ELT 404 (Tri.-Del.) has observed that rejecting transaction value by merely saying that it does not represent correct value and seems to be on lower side without any findings on contemporaneous imports, is not legally sustainable. In the present case also, Revenue has not brought any finding on the contemporaneous imports, it is not the Revenues case that any proviso to Section 14(1) of Customs Act are available in the present case. In such circumstances, we opined that rejecting the bills of entries of the appellant and levying thereupon the differential duty thereof is not sustainable.
7. Now coming to the aspect of as to whether the deposit of the differential duty by the appellant amounts to the acceptance of enhanced value on his part, it is observed and held that it is a matter of common experience that the importers cleared 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 incurred demerits 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 outcome of the dispute. Inasmuch as the goods imported by the appellant were required in assessees factory, the same were cleared by them on payment of duty on enhanced value and in the given circumstances, this fact by itself cannot be adopted as a ground for resolving the disputed issue of valuation. The fact that the assessment of bills of entries were challenged by the appellant before Commissioner (Appeals) by way of filing appeals, is itself indicator of the fact that appellants were not satisfied that such enhancement and have exercised their right of appeal provided under the statute. We draw our support from the decision in case of Commissioner of Customs vs. Ganesh Trading Co. - MANU/CE/0891/2011 : 2013 (297) ELT 75 (Tri.-Del.), wherein it was held that payment of duty at the enhanced value and clearance of goods in urgency cannot exclude or preclude the assessee form challenging the assessed bill of entry on the sole ground that goods stand cleared at the enhanced value.
8. As a result of entire above discussion, the appeal in hand is hereby allowed, rejecting the re-assessment by the Revenue. For the same reasons as discussed above, we also hereby do away with the penalty as has been imposed upon the appellants. Appellants are held entitled for the refund of the differential duty paid by them in accordance of the relevant rules in this regard.
[Pronounced in the open Court on 28.06.2018]
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