M/S Century Metal Recycling Pvt. Ltd vs Cc, Noida

(Arising out Order-in-Appeal No. 25/CE/APPL/NOIDA/2010 dated 27.1.2010 passed by the Commissioner of Customs &, Central Excise, Noida)

For Approval & Signature :

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

M/s Century Metal Recycling Pvt. Ltd. Appellant

Vs.

CC, Noida Respondent

Appearance:

None - for the Appellant

Shri B.B. Sharma, D.R. - for the Respondent

Coram : Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 52639/2015

Per R.K. Singh:

Appeal is filed against order-in-appeal dated 27.1.2010 which upheld the order in original dated 14.9.2009 in terms of which the declared value of US dollars 1387 for goods namely aluminium scrap of tense and taint was rejected and the assessable value was re-determined at US dollars 1875 per metric ton under Rule 9 of the Customs Valuation (Determination of Prices of Imported Goods), Rules, 2007.

2. The appellant has contended that :

(a) The transaction value has to be accepted and the loading has been done arbitrarily,

(b) No grounds have been given for rejecting the transaction value. It cited the judgement in the case of Eicher tractors Ltd Vs. CC Mumbai - 2000 (122) ELT 321 (SC),

(c) The NIDB data was never disclosed to it,

(d) The value was not accepted by the appellant and the onus to establish that the transaction value is not acceptable is on Revenue

3. Ld. DR on the other hand stated that the appellant had accepted the proposed enhancement in writing and the duty was paid without any protest and therefore it is not open for the appellant to agitate that issue.

4. We have considered the contentions of both sides. We find that both the lower authorities have clearly recorded that the appellant had consented for the revised value in writing. It is also a fact that the duty was paid at the enhanced value without protest. This shows that the appellants contention that they did not accept the revised transaction value is obviously untenable. By consenting to enhancement of value and thereby voluntarily forgoing the requirement for a show cause notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the accepted value in effect becomes it declared transaction value requiring no further investigation or justification. In such a situation the judgement in the case of Eicher Tractors Ltd. (supra) is of no help to the appellant. To allow the appellant to contest the accepted value is to put Revenue in an impossible situation when the goods are no longer available for inspection and Revenue rightly did not proceed further collect and compile all the evidences/basis into a show cause notice, more so because had Revenue insisted upon issuing a show cause notice, in spite of the appellant having consented to the enhanced value and requested for no show cause notice it could/would have invited allegation of harassment and delay in clearance of goods. When the show cause notice is foregone and the valuation is consented, the violation of principles of natural Justice cannot be alleged. In these circumstances, alternatively also, allowing the challenge to the valuation 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 re-valuation as per its consent suffered from fatal infirmity and such onus cannot be discharged at this stage because valuation of such goods (like scrap) requires their physical inspection unlike valuation of standard goods like, say, gold bar. Further we find that revaluation was done based upon the NIDB data and was in no way arbitrary or unreasonable.

5. We find that the CESTATs judgement in the case of Vikas Spinners Vs. CC, Lucknow [2001 (128) 143 (TRI  Del],CESTAT, dealing with a similar situation, held 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 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 added)

Similarly, in the case of Guardian Plasticote Ltd. Vs. CC (Port), Kolkotta [2008 (223) ELT 605 (Tri.  Kol.)] CESTAT has held as under:-

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 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.

The present case is thus squarely covered by the (above) judgements in the cases of Vikas Spinners and Guardian Plasticote Ltd.

5. In the light of the analysis above, we do not find any merit in the appeal and therefore the same is dismissed

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

3