Sanjay Agarwal vs Union Of India Through Commissioner ...

WP-1202-2022-IAL-9504-23-23072024.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1202 OF 2022 WITH INTERIM APPLICATION (L) NO.9504 OF 2023 IN WRIT PETITION NO.1202 OF 2022 SANJAY AGARWAL Age :-52 years, Resident At : 1001, Brindavan Terraces, Deonar Farm Road, Deonar, Mumbai-4000 088. )...PETITIONER V/s. 1. UNION OF INDIA, Ministry of Finance, Department of Revenue, through Commissioner (Legal), CBIC Offices, Legal Cell/CX. 8A, 5th Floor, Hudco Vishala Bldg, R.K. Puran, New Delhi -110 066. Email : commr.legal-cebec@nic.in 2. CENTRAL BOARD OF CUSTOMS AND INDIRECT TAXES THROUGH The Chairman Ministry of Finance, Department of Revenue, North Block, New Delhi. Email:- chmn-cbic@gov.ir 3. DIRECTORATE OF REVENUE INTELLIGENCE Through the Additional Directorate Mumbai Zonal Unit 13, Sir Vithaldas Thackersey Marg, UTI Building, New Marine Lines, Mumbai-400 020. Email: drimzu@nic.in 4. DIRECTORATE GENERAL OF VALUATION Through Director General New Custom House, Annexe (7th Floor), Ballard Estate, Mumbai-400 001. Email : directorate. Valuation@dov.gov.in

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5. MERCEDES-BENZ INDIA PRIVATE LIMITED E-3, MIDC Chakan, Phase III, Chakan Indl. Area, Kuruli & Nighoje, Chakan, Pune-410 501, Maharashtra Email : cs.ind@cac.merecedes-benz.com ajay.raut@daimler.com 6. SKODA AUTO VOLSWAGEN INDIA PRIVATE LIMITED Plot No.E-1, MIDC Indl. Area, Phase III, Nigoje Kharabwadi, Chakan, Taluka-Khed, Pune-410 501, Maharashtra And Also at : 4th Floor, Solver Utopia, Cardinal Gracious Road, Chakala, Andheri, East, Mumbai-400 099. Email :info@www.skoda.v.v.co.in indirect.tax.vwvi.r.india@volkswagen.co.in 7. BMW INDIA PRIVATE LIMITED 2nd Floor, Oberoi Corporate Tower, Building No.11, DLF Cyber City, Guragon, Haryana. Email :arun.gulati@bmw.in 8. DIRECTORATE OF REVENUE INTELLIGENCE Through the Additional Director Bengaluru Zonal Unit, No.8 (P), 1st Stage, 3rd Block, HBR Layout, Opp BDA Complex, Bengaluru, Karnataka-560043. )...RESPONDENTS

Mr. Prakash Shah a/w Mr. Mihir Mehta, Mr.Durgaprasad Poojari i/b PDS Legal, Advocates for the Petitioner. Mr. Devang Vyas, ASG a/w Mr. Pradeep Jetly, Senior Advocate a/w Mr. Jitendra B. Mishra, Mr. Sheelang Shah, Mr.Ashutosh Mishra, Mr.Rupesh Dubey, Advocates for Respondents No.1 to 3/ Union of India & 8 a/w. Ms. Jaymala J. Ostwal a/w Mr. Siddharth Chandrashekhar, Advocates for Respondent No.4. Mr. Rafique Dada, Senior Advocate a/w Mr. Prasad Paranjape, Ms.Dhruvi Shah i/b. Lumiere Law Partners for Respondent No.5. Mr. Darius Shroff, Senior Advocate a/w Mr.Anay Banhatti, Ms. Asmita Gupta, Advocates for Respondent No.6. Mr. Prasad Paranjape a/w Ms. Dhruvi Shah i/b Lumiere Law Partners Advocates for Respondent No.7

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CORAM : NITIN JAMDAR & ABHAY AHUJA, JJ.

RESERVED ON : 10th JULY, 2024 PRONOUNCED ON : 16th JULY, 2024

JUDGMENT (PER COURT). :

1. By this Petition, the Petitioner has sought the following reliefs :-

(a) To issue appropriate writ, order or direction in the nature of

mandamus to call for the complete records of File no. DRI/MZU/B/INT-

87/2016 from the Respondent no.3 to ascertain the correctness, legality

and propriety of the inaction in bringing a logical end as per law to the

detailed and credible information given by the Petitioner vide letters

dated 09th January, 2015, 09th September, 2016, 25th November, 2016

and the DRI-1 recorded on 07th December, 2016 in the office of

Respondent No.3 pursuant to the Order dated 15 th July, 2016 passed by

the Hon'ble Supreme Court in Writ Petition 20 of 2016 preferred by the

Petitioner;

(a1) That this Court be pleased to declare that the SVB orders, and

orders of assessment and clearance of goods for home consumption

obtained by Respondent nos.5 to 7 pursuant thereto or otherwise under

Sections 17, 18(2) and 47 of the Customs Act, 1962, having been

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obtained by the private Respondents 5 to 7 by material suppression,

fraud and mis-representation, are nullity, void ab-initio and non-est in

the eyes of law as per ratio laid down in AV. Papayya Sastry Vs.

Government of A.P. reported in (2007) 4 SCC 22.

(b) To issue appropriate writ, order or direction in the nature of

mandamus to direct the Respondents to forthwith investigate the

matter of continued massive undervaluation and mis-declaration of

material particulars to evade customs duty in import of new 'Luxury

Cars' from such related parties who are parent / group companies of

the Respondents importers, and to exercise the powers and discharge

the duties conferred or imposed under the Customs Act, 1962 so as to

expeditiously determine issues of levy, assessment and collection of

Customs Duty with applicable interest and issues of fine and penalty

under the provisions of the Act and the Rules and Regulations made

thereunder and all other issues connected therewith or arising

therefrom or incidental thereto;

(c) To issue appropriate writ, order or direction in the nature of

mandamus to direct the official Respondents to inquire into the

continued inaction by the concerned officer/s causing huge revenue

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loss and to take such further action as may deem just and expedient in

accordance with law;

2. Earlier in SLP bearing no. WP (CRL) No. 20 of 2016 filed before

the Hon'ble Supreme Court, the Apex Court on 15 th July, 2016, had

passed an order permitting the Petitioner to file all the relevant

documents before the authorities viz. Additional Director, Directorate of

Revenue Intelligence (the "DRI"), Mumbai, within eight weeks, with a

further direction that in case the authority is convinced that

information given by the Petitioner is credible, he shall take appropriate

action as advised in law.

3. In pursuance of the aforesaid order passed by the Hon'ble

Supreme Court, the Petitioner submitted documents before the said

authority on 9th September, 2016.

4. It has been the case of the Petitioner that despite the order of the

Hon'ble Supreme Court dated 15th July, 2016, and lapse of considerable

time, the authorities did not take action and therefore, the Petitioner

had to approach this Court by way of this Writ Petition seeking a

direction to the authorities to forthwith investigate the matter of the

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purported massive undervaluation and mis-declaration of material

particulars allegedly resulting in evasion of customs duty in import of

luxury cars.

5. Since as per order of the Hon'ble Supreme Court dated 29 th

March, 2023 the question of locus need not be gone into as the Hon'ble

Supreme Court has held that the Petitioner has locus and has directed

this Court to proceed to consider and decide the Writ Petition in

accordance with the law on its own merits without entering into the

question of locus of the Petitioner to maintain the Petition, in

accordance with the direction of the Hon'ble Supreme Court, we

proceed to hear this Petition.

6. After the order of the Hon'ble Supreme Court, dated 29 th April,

2023, the Petitioner had also filed an Interim Application dated 3 rd July,

2023, seeking following prayers :

a. This Hon'ble Court be pleased to allow the present Application;

b. To stay the operation of the SVB Orders and the order of

assessment and clearance of goods for home consumption obtained by

the Respondent Nos. 5 to 7 pursuant thereto under Sections 17, 18(2)

and 47 of the Customs Act, 1962;

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c. To direct the Respondent No.2 to forthwith issue instructions to

all Customs Authorities across India to assess all pending and future

Bills of Entry of Respondent nos.5 to 7 only on provisional basis under

Section 18(1) of the Customs Act, 1962 by obtaining appropriate bond

and security in accordance with law, and to ensure that at the time of

filing Bill of Entry, the response to Questionnaire at Annexure A to SVB

Circular No. 5/2016-Cus dated 09.02.2016 is duly filled particularly to

questions 4, 5.2, 5.3, 5.4 and 5.5 and accordingly to inter alia ensure

that the particulars of the website of the related foreign seller showing

standard fittings and Price generally offered, the Manufacturer's Price

List of subject Standard Card and of its accessories and fittings, and

price declared by unrelated importer in India, are submitted with every

Bill of Entry filed in their imports from related supplier;

d. For just and expeditious adjudication of the petition, to direct the

private Respondents No.5 to 7 to forthwith file before this Court

complete details as per SVB Circular No. 5/2016-Cus dated 09.02.2016,

particularly the details required in reply to questions 4, 5.2, 5.3, 5.4

and 5.5 (in Annexure to the Circular) and the "Pricing Pattern" (in

Annexure B to the Circular) with their affidavit, including but not

limited to the price of the imported goods or identical or similar goods

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internationally quoted in data base published in automotive industry

publications/websites, Global Price List, Supplier Manufacturer's Price

List for every Standard Car and its accessories and fittings, details of

sale and price settled by Seller with other related Group Companies /

unrelated buyers in other Countries such as UK or UAE, and price at

which supply made directly to any unrelated person in India.

7. To the said Interim Application, the Respondents have also filed

replies dated April-2023 as directed by this Court. Having considered

the averments in the Interim Application and the prayers made therein

on 25th April, 2023, this Court had observed that in deciding the

Application, the merits of the Petition would have to be substantially

heard and therefore, the same be listed along with the Petition.

Accordingly, this Application has been considered in the context of the

Writ Petition.

8. We have heard the learned Counsel and the learned Senior

Counsel for the Petitioner as well as the Respondents, and also the

learned Additional Solicitor General of India at length over a period of

one year and given our thoughtful consideration to the submissions.

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9. Mr. Prakash Shah, learned Counsel for the Petitioner would

submit that despite there being a published price list containing sale

price of the car model, the importer viz. the subsidiary of the exporter

manufacturer is selling the models at rates which are grossly

undervalued resulting in leakage of revenue to the Indian authorities.

He would submit that as per the customs law as well as Rules and

circulars issued by the CBEC (now "CBIC"), every exporter is to have a

price list according to which the sale transactions are to be valued,

subject of course to trade/festival discounts, etc. Learned Counsel

would submit that difference in the sale price and the published price

list does not suggest that the difference is a discount in the normal

course of business but the difference is too large and simply an

undervaluation to defraud Indian Revenue, which must stop and

therefore, the request to direct an investigation to ascertain the truth

and eventually give direction for measures by the Respondent for

plugging such revenue leakage.

10. Mr. Shah has taken us through the various documents including

price list of the various models of Skoda, Mercedes, Volkswagen, the

SVB orders, the Bills of entry as well as the comparable imports of

similar models/other luxury cars including Bentley by other entities in

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India as well as abroad, in support of Petitioner's contentions. The

Indian subsidiaries who have imported these models and who are

Respondents herein have also filed their affidavits in reply; the DRI and

Customs Authorities have also filed their respective affidavits.

PETITIONER'S SUBMISSIONS

11. The Petitioner has submitted that he is a citizen of India and an

Advocate by profession. That he had filed the Writ Petition W.P. (Crl.)

No.20/2016 before the Hon'ble Supreme Court under Article 32 of the

Constitution of India and by order dated 15 th July, 2016, the Hon'ble

Supreme Court had permitted the Petitioner to file all the relevant

documents before the authority viz. Additional Director, Directorate of

Revenue Intelligence (DRI), Mumbai within 8 weeks with a further

direction that in case the authority is convinced that information given

by the Petitioner is credible, he shall take appropriate action as advised

in law.

12. That pursuant to the said order, the Petitioner submitted the

documents before the DRI on 9th September, 2016. It is submitted that

since the Petitioner was aggrieved that for a substantial period of time

no action was taken by the authorities, despite the direction of Hon'ble

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Supreme Court contained in order dated 15 th July, 2016, the Petitioner

approached the Bombay High Court by filing the present Writ Petition

seeking the above directions to the authorities to forthwith investigate

the matter of continued massive under-valuation and mis-declaration of

material particulars resulting in evasion of customs duty in the import

of new luxury cars.

13. The Respondent No.1 is the Union of India. Respondent No.2 is

the Central Board of Customs and Indirect Taxes viz. the CBIC and the

Apex Body for administering the levy and collection of Indirect Taxes of

the Union of India. Respondent No.3 is the DRI an Intelligence and

Enforcement Agency of the Union of India inter alia for collecting

information and for investigation concerning matters of evasion of

taxes. Respondent No.4 is the Director General of Valuation and

functions for Departments like Respondent No.2, concerning matters of

customs valuation including monitoring and examining the quality of

orders passed by Special Valuation Branches (SVBs) which investigate

cases of related party imports and co-ordinate with income tax

authorities on "Transfer Pricing" and "Customs Valuation" by sharing of

information. Respondent No.5, admittedly is the Indian subsidiary of

Daimler AG, Germany. Respondent No.6, admittedly is the Indian

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subsidiary forming part of Volkswagen Group headquarters in

Wolfsburg, Germany and is responsible for the operations of 5

Automobiles in India viz. Skoda, Volkswagen, Audi, Porsche and

Lamborghini. Respondent No.7, admittedly is a wholly owned

subsidiary of BMW AG-Germany. Respondent No.8 is the Bangalore

Unit of the DRI to whom the Respondent No.6 has furnished

information and data inter alia with respect to the transactions with

related parties pursuant to an investigation initiated in or about

October 2017 by the said Respondent No.8 against Respondent No.6 to

whom Respondent No.6 has also furnished documents, information and

clarifications.

14. Mr. Shah would submit that pursuant to the Order dated 15 th

July, 2016 passed by the Hon'ble Supreme Court in petitioner's WP(C)

20 of 2016, the officers of the DRI were obliged to ascertain as to

whether the written information given by the Petitioner from time to

time since 9th January, 2015 were credible and disclosed that the

assessable value declared by the private respondents was influenced by

relationship with respective supplier, warranting - (a) rejection of

declared transaction value, (b) taking all necessary expedient steps for

appropriate levy, assessment and collection of Customs Duty, and (c)

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taking such penal and confiscatory action, as are prescribed under

Customs Act, 1962.

15. That for inexplicable reasons best known to the concerned

officers of DRI, there is gross failure in discharge of official duty to

protect the revenue's interest, thereby facilitating continuing windfall

gains to the three private respondents, contrary to the statutory

provisions and prescribed procedures in that regard. There had been

absolute lack of transparency from the concerned officers of

Respondent no.3, which has resulted in mammoth loss of government

revenue. The powerful private respondents have not only escaped from

levy, assessment and collection of appropriate duty, but have also

escaped from civil and criminal, penal and confiscatory measures as

provided in Rule 11(3) of the said Valuation Rules read with the

provisions of the Customs Act, 1962.

16. Mr. Prakash Shah learned Counsel for the Petitioner, has while

pressing the aforesaid prayers submitted in the written submission that

the prayers in the Writ Petition as well as in the interim application,

give rise to 17 main issues for adjudication on merits for considering

the prima facie case that there is continued massive under-valuation

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and mis-declaration of material particulars resulting in evasion of

customs duty in import of luxury cars in India and that the Respondent

No.3 has chosen not to investigate or after investigation decided not to

take any action in accordance with law concerning import of luxury

cars by Respondents No.5 to 7 from their related parties, which issues

are set out hereunder :

(I) Whether the information, data and material produced by the

Petitioner, which were not produced by the private respondents and

suppressed from assessing officer as well as from SVB, are relevant for

ascertaining the circumstance surrounding sale, as per the SVB

Circulars dated 23.02.2001 and 09.02.2016 and circular dated

07.05.1990, issued by the Board, the Customs Valuation Rules issued by

the Central Government, and Article 17 of the Agreement on

implementation Article VII of GATT, inter alia for doubting and

rejecting declared transaction value? This, information, data and

material, inter alia, includes-

(i) Manufacturer's Price List of each model showing its variant in

country of manufacture - showing standard equipment, its price with

and without Tax, and with details and prices of the operational fittings;

(ii) GCC Package Price List of cars for Middle East Countries issued

by Manufacturer's subsidiary - showing standard equipment, other

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fittings included in GCC package for Middle East Countries, its price for

GCC Package, with details and prices of the operational fitting;

(iii) The "Pricing Pattern" discernible form-

(a) The websites of the manufacturer,

(b) The websites of its related parties in other Countries,

(c) The websites of reputed car dealers abroad,

(d) The International Industry Publications of repute,

(e) Material showing abnormal discounted rate for import in India

by the private respondents from their related party as compared to that

for supply to UAE,

(iv) Comparison of price declared by Respondent No.5 for its import

of cars as FBU (at higher rate of Customs Duty) vis a vis price declared

by it for its import of cars as CKD (at lower rate of Customs Duty);

(v) Import of 'armoured/Guard' car by mis-declaration and gross

suppression of value and description in the Bill of Entry, discernible

form the estimated price from Industry Publication and also the

domestic sale price post importation. Significantly, in later imports of

'armoured/Guard' cars by unrelated importer (as per media reports for

the use by Hon'ble Prime Minister), the correct value and description as

mentioned in the Bill of Entry and the price declared is also

substantially higher.

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(vi) Details of various imports in India by other unrelated parties,

each of them being at substantially higher value than that declared by

the private respondents in their related party transactions in the same

period, from the same country and from the same related supplier.

(vii) Material showing import of cars in India by Respondent no.6

form related foreign supplier from Middle East, at price declared in

India [USD 31,823 for MACAN and USD 38,192.6 for CAYMAN (at

Page 45 and 46)] being much lower than the procurement price of the

said related supplier for Middle East [USD 50,955 for MACAN AND

USD 52898 for CAYMAN], resulting in not only suppressing assessable

value of charging Customs Duty, but also seeking assessment at a lower

rate of Customs Duty; and

(viii) As against import of luxury cars from related party by the private

respondents at ridiculously low declared value, in import of other

luxury cars such as Bentley (manufacturer related to Respondent no.6)

and Rolls Royce (manufacturer related to Respondent no.7), etc which

are imported directly by unrelated dealer / consumer, the declared

price are comparable to UK price of dealer available from same

websites or Industry Publications.

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(II) Whether the said representative information data and material

produced by the Petitioner, suppressed by the private respondents, and

ignored by the officers of revenue, prima facie shows ex facie

ridiculously low value declared for assessment of Customs Duty by

private respondents in their imports from related party to evade

Customs Duty ?

(III) Whether the imported cars in CKD or FBU were generally sold

and offered for sale, even to unrelated parties, at the same ridiculously

low price declared by Respondent nos.5 to 7?

(IV) Whether the abnormal discount in price offered for CKD and FBU

cars by the Foreign Supplier is exclusive for their subsidiary in India, as

compared to its subsidiaries in other countries, to evade high Customs

Duties in India applicable at significantly higher rates of about 145% to

215% as against only 20% VAT payable in UK on imports from

Germany, and only 5% Customs Duty payable in UAE for import of

Cars?

(V) Whether deliberate suppression by the private respondents from

the assessing officer as well as from SVB, of such material information,

data and material, having a bearing on the value for the purpose of

assessment, would render the favourable orders so obtained

fraudulently by private respondents, as non-est, void ab-initio and

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nullity in the eyes of law as per ratio A.V. Papayya Sastry v. Govt of A.P.-

(2007) 4 SCC 221?

(VI) Whether the judgments of the Hon'ble Supreme Court relied

upon by the petitioner in his writ petition itself viz. Century Metal

Recycling (P) Ltd. v. Union of India, (2019) 6 SCC 655, Padia Sales

Corpn. v. Collector of Customs, Bombay, 1993 Supp (4) SCC 57, Sharp

Business Machines (P) Ltd., (1991) 1 SCC 154, Habasit Lakoka Pvt Ltd

vs. CC (Imports)- 2015 (321) E.L.T. 15 (S.C.), Mytri Enterprises vs.

Commissioner - 2015 (323) ELT A71 (SC), and Varsha Plastics (P) Ltd.

v. Union of India, (2009) 3 SCC 365, are not at all relevant in the fats

and circumstances of the case, as claimed by the private respondents

and Shri Sandeep Gunjal, the officer of DRI.

(VII) Whether any Transfer Pricing orders obtained for the purpose of

Income Tax would bind Customs Authorities and prohibit them from

ascertaining correct value for the purpose of levy, assessment and

collection of Customs Duty under Section 14 read with Rules and

Instructions issued by the Board ?

(VIII) Whether the rate of Customs duty being in multiples of rate of

Income Tax, and the taxable event for imposing Customs Duty

occurring under Section 12 when goods are brought into the territorial

waters of India, the reliance on Transfer Pricing study for acceptance of

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ridiculously low declared valuer exclusive for the Indian subsidiary

(which is not specific to any transaction of import of car, but aimed for

the purpose of discharging Income Tax liability for a particular year and

is mainly based on post importation costs), is beyond any lawful

justification and would lead to absurdity?[for e.g. Declared Price of

FBU being lower than CKD of same or even lower model] ?

(IX) Whether despite the gist of statement dated 05.04.2016 by GM of

Respondent no.5 showing failure to satisfy the comparison of price of

same model in FBU at 49K Euro, CKD 66K Euro and unrelated party

import at 111K in 2016 (page 749), and despite email dated

23.06.2020 by an officer of DRI to Respondent no.5 still asking 'why

price of CBU is lesser than CKD' (Page 759), and response of

Respondent no.5 in para 10 of Reply Affidavit that "....the difference in

price is supported with well accepted legal principles of Customs

valuation..." (Page 720), accepted without any justification by officer of

DRI, would merit acceptance of this Hon'ble Court without looking into

investigation report based on such alleged "legal principles of Customs

valuation" which do not exist?

(X) Whether issuance of orders of SVB, assessment and clearance,

and the alleged investigation by officers of DRI were mechanial with

culpable negligence, merely by accepting undertaking / indemnity /

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statements, without considering / following the requirements

stipulated in -

(i) SVB circulars no. 11/2021-Cus dated 23.02.2001 and paragraph

29 of Annexure A and paragraphs 8 to 12 of Annexure B thereof, SVB

Circular No.5/2016-Cus dated 09.02.2016 and in particular questions

4, 5, 2, 5.3, 5.4 and 5.5 (Annexure A to the Circular) and the "Pricing

Pattern" (in Annexure B to the Circular), which were admittedly not

produced by the Respondent Nos.5 to 7,

(ii) Board Circular dated 07.05.1990 instructing to consider

published price list of the manufacture as prima facie evidence of under

valuation in imports;

(iii) Customs Valuation Rules and particularly Rule 3 and 12;

(iv) Despite settled position of law as per the judgments relied upon

by the Petitioner;

(v) Despite being aware that orders of SVB and assessment in import

of dealer tools and equipment by the private respondents from related

party was on the basis of Price List?

(vi) And despite being aware of the admitted position that price

declared in CKD and FBU for imports by its subsidiary was determined

by the parent German company, inter alia, based on duties and taxes in

the country of importation and post importation costs of the subsidiary,

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despite there being no separate discount policy for India having been

disclosed.

(XI) Whether prima facie case exists for directing the officer of DRI

Mumbai and Bangalore to produce before this Court investigation

report with complete file to ascertain legality, propriety and validity of

the inaction by the officers of DRI, and to pass such further appropriate

orders to safeguard and to prevent further evasion of government

revenue as may deem just and expedient?

(XII) Whether the petitioner is entitled to have a copy of the

investigation report of the cognizable offence alleged by him, to protest

and assist the Hon'ble Court, inter alia, in the light of the judgment of

Hon'ble Supreme Court Bhagwant Singh v. Commissioner of Police ,

(1985) 2 SCC 537 read with the Order dated 29.03.2023 passed by the

Hon'ble Supreme Court in SLP(C) D12911/2023 filed by the petitioner

and in light of the undertaking obtained from him in terms of Board

Circular 20/2015-Cus dated 31.07.2015?

(XIII) Whether the concerned officer of DRI have failed to take

appropriate and reasonable expedient steps to prevent further revenue

loss and had failed to share complete particulars of the allegations

along with the said information, data and material produced by the

Petitioner, with the concerned departments including SVB, CBIC, DGOV

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and all concerned Customs Commissionerate?

(XIV) Whether forthwith investigation into the continued evasion of

duty as per the information provided by the petitioner and explained

further in the instant petition and affidavits filed therein is warranted

for which the petitioner can also extend his cooperation?

(XV) Whether, ignoring such massive under valuation in imports of

Luxury cars and not even investigating and preventing the same in

accordance with law, would set at naught the avowed policy of Central

Government in larger public interest for compelling the foreign

manufacturers of Cars to manufacture them in India, by having higher

rate of Customs Duties for FBU imports, lower rate for CKD imports,

and further lower rate for Parts imports ?

(XVI) Whether prima facie case is made out for passing any interim

direction to the Respondent No.2- 'Central Board of Indirect Taxes' to

forthwith take appropriate steps as prayed to safeguard revenue in

these related party imports in terms of Circulars issued by it ?

(XVII) Whether the writ petition and the prayers in the IA are to be

allowed to redress the public injury and to enforce the public duty of

the official Respondents ?"

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17. Mr. Shah would submit that above 17 issues merit serious

consideration and adjudication by this Court and therefore the prayers

in the Petition as well as in the Interim Application be granted.

SUBMISSIONS OF RESPONDENT NO.5

18. On the other hand, Mr. Dada, learned Senior Counsel for

Respondent No.5 would submit at the outset that the prayer of the

Petitioner seeking writ of mandamus alleging continued massive

undervaluation and mis-declaration is not maintainable as this would

be asking the Court to give direction in respect of future imports. That

each assessment is a fresh assessment and that presently, it cannot be

said that there would be undervaluation and mis-declaration in future.

Mr. Dada has submitted that the entire system will collapse if this Court

gives direction in respect of future imports.

19. Mr. Dada submits that even though having wide powers, the High

Court in writ jurisdiction cannot review the decision of the executive

but only the decision-making process.

20. Learned Senior Counsel submits that the Petition is hit by delay

and laches. The Petitioner did not participate in investigation after

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2016. That the DRI closed the investigation proceedings in 2020 after

finding no evidence of undervaluation. The Petitioner approached this

Court in 2022 i.e. 2 years after closure of investigation and after almost

6 years of disposal of its case raising similar grievance before the

Hon'ble Supreme Court.

21. And therefore the allegation of inaction by DRI is incorrect. The

Respondent No. 5 has made elaborate submissions in this regard in its

Affidavit-in-reply dated 21st April, 2023 wherein they have stated that a

detailed investigation was conducted.

22. It is submitted that Respondent No. 3 found no undervaluation

after examining the documents submitted by the Respondent No. 5.

That, before concluding the investigation, the Respondent No. 3 wrote

various letters asking the Petitioner if he has any additional information

to submit but the Petitioner did not respond to the said letters and it is

only thereafter, that the proceedings were concluded.

23. Mr. Dada would submit that the bonafides of the Petitioner is in

doubt. That before the Hon'ble Supreme Court, the Petitioner had

submitted that his intention behind challenging the valuation was to

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get reward as per the guidelines laid down under Circular No.

20/2015-Cus dated 31st July, 2015.

24. On merits, Mr. Dada would submit that the transaction value is to

be determined in accordance with the Customs Valuation Rules relying

upon the decision of the Hon'ble Supreme Court in Eicher Tractors Ltd.

v/s. Commissioner of Customs, Mumbai, reported in 2000 (122) E.L.T.

321 (SC). Mr. Dada would submit that a price list is really no more than

a general quotation. It does not preclude discounts on the listed price.

That in fact, a discount is calculated with reference to the price list. A

discount is a commercially acceptable measure, which may be resorted

to by a vendor for a variety of reasons including stock clearance and

that it is erroneous to reject the transaction value and can not be a

reason by itself.

25. As regards the specific allegations made by the Petitioner Mr.

Dada has referred to the following table :

Sr. Petitioner's allegation Respondent No.5's response

No.

1. Two cars of same model have Independent importers are vast difference in prices. importing the cars from dealers in Germany at showroom

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Import price of armoured car prevailing in Germany.

is three times more than the Respondent No. 5 is importing Base Model of the car. from manufacturer.

Also huge difference in import Two cars of same model can Two cars of same model can also have price differences also price and sale price. because of the additional features embedded in the cars.

(Page 20, 21 - Para 17, Para The buyer opting for a car of a 18 and 19} particular Model No. embedded with additional features would have to pay much higher as compared to buyer opting for the car with lesser additional features of the very same Model No.

Comparison of import price and retail sale price is unfair.

Several costs get added to the price of the car before it is sold locally. The selling price of any car would also include additional expenses like customs duty, charges, inbound and outbound transportation, extended warranty charges, inventory carrying costs, margins to be paid to dealers and profit of the distributor as well as prevailing local taxes and levies like VAT. These additional costs invariably lead to an increase in the sale price of a car. { Page 718, 719 para 8, 9} {Para 6-Affidavit-in-Reply dated 21st April, 2023 of the Respondent No.5}

2. Value of FBUs is similar or For CKD Model, parts are to be lesser than the valuer sourced separately when

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declared by the Respondent compared to FBUs which are NO.5 for CKD Model. {Page manufactured in a highly 21, 22-Para 20, 21 and 22} advanced facility. Therefore, cost of manufacturing of CKD goes up.

Further, the quantum of FBUs imports is substantially higher when compared to CKD Model's due to which there is a price difference.

{Page 720-Para 10, 11}

3. Assessable value declared by Price List of another country the Respondent No.5 is lesser cannot be taken into when compared with the price consideration as it is the list for Middle Est Country. showroom / retail price in that {Page 24-Para 23} country. Further, various parameters have to be taken into account like estimation of sales volumes, market penetration, product configuration, local taxes, inflation, general and administrative costs etc. {Page 723-Para 16}

4. Special Valuation Branch Circular No.5/2016-Cus. Dated (SVB) orders are not correct 09th February, 2016 -

Investigation procedure by Special Valuation Branch explains that detailed examination takes place before passing the SVB order. {Page 418} 5. Relationship between the The issue of influence of Respondent No.5 and its relationship on the invoice price parent company Daimler AG has already been decided by has influenced the prices of SVB order dated 27th January, the car. 2005 and the same has been reviewed in the years i.e. 2008, {Page 34-Ground A} 2011 and 2015. There is

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specific finding by SVB that there is no flow back. The transaction has again been examined wherein the Respondent No.5 furnished submissions explaining its pricing method along with several documents viz. General Distributor Agreement between the parent company and respondent No.5, Bill of Entry, Annual Reports for the last three financial years, Transfer Pricing report for the Assessment year 2017-18 and several other documents. The Commissioner of Customs (Import) had taken the same into consideration while issuing the Investigation Report dated 09th June, 2020 wherein they have accepted the transaction value. The aforesaid documents are also examined by Respondent No.3.

{Page 727-728-Para 26} 6. SVB orders have been All checks and balances are obtained by Respondent No.5 provided in the Act itself. There through misstatement and is robust assessment process. suppression of facts. Provisions are there in case there is duty short-leived or There is active connivance by collected. the high ranking officials There is no misdeclaration and

{Page 67, 68-Ground R and suppression. An exhaustive list S} of documents was submitted before Respondent No.5 in the year 2005 before passing the SVB order, further the SVB order has been reviewed in

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2008, 2011 and 2015.

Further the Commissioner of Customs (Imports) has also issued an Investigation report dated 09th June, 2020 accepting the transaction value.

In relation to the allegation of connivance, the assessment of Bill of Entry is subject to review under Section 129D of the Custom's Act, 1962. Further different branches of the Department i.e DRI, SVB, jurisdictional Commissionerate are involved hence it is difficult to sunrise that all have simultaneously connived with Respondent No.5. Further the actions of the officials of the customs officials of the customs Department also subject to Custom Revenue Audit ("CRA") under the provision of Section 16 of the Comptroller and Auditor's General (Duties, Powers and Conditions of Service) Act, 1971.

{Page 733-Para 39} {Para 10-Affidavit-in-Reply st dated 21 April, 2023 of the Respondent No.5}

SUBMISSIONS OF RESPONDENT NO.1 TO 4

26. Mr. Jetly, learned Senior Counsel has submitted that in the facts

of this case, it is necessary that the antecedents of the Petitioner which

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are a matter of record are considered. Learned Senior Counsel had

submitted that the Petitioner, as Director of Sprint Services Private

Limited was involved in a case of misuse of customs notification

No.49/2000 dated 27th April, 2000, by importing cars under Export

Promotion Capital Goods (EPCG), Scheme which was allowed subject

to the "Actual User" condition as well as condition of fulfillment of

export obligation, by use of the said imported goods. That the

Petitioner in breach of the said Notification disposed of the imported

cars in the open market and created documents to show apparent

compliance with the conditions of the license. After a thorough

investigation, the DRI issued two Show Cause cum Demand Notices

bearing No.- (I) 27/XI/29/2001-CI dated 31 st May, 2002 [for 20 cars],

and (ii) DRI/BZU/C/2001 dated 03 rd June, 2002 [for 5 cars],

demanding differential Customs Duty of Rs.2,93,61,300/- and

Rs.62,58,173/- respectively.

27. Learned Senior Counsel has submitted that one more Show

Cause Notice was issued to the Petitioner by the DRI, Delhi Zone Unit

under Section 124 of the Customs Act, regarding confiscation of 6 cars

lying uncleared at ICD Ludhiana, wherein the declared assessable value

of the cars were found to be grossly understated. It is also submitted

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that the Petitioner was arrested on 29 th June, 2001 during the course of

investigation in the case involving 20 cars as above. It is also submitted

that the Petitioner on receipt of Show Cause cum Demand Notice as

mentioned Sr No.(ii) above approached the Additional Bench of the

Settlement Commission, Mumbai and admitted that he had committed

breach of the EPCG License and customs notification No.49 of 2000

dated 27th April, 2000 and, was willing to pay customs duty liability as

demanded. Thereafter, the final order dated 10 th April, 2003 was

passed by the Settlement Commission, wherein the Settlement

Commission granted immunity to the Petitioner from fine, penalty,

prosecution. It is submitted that the Petitioner, paid the full amount of

differential customs duty along with interest.

28. Mr. Jetly, learned Senior Counsel has submitted that the

Petitioner was involved in smuggling of high value cars.

29. Learned Senior Counsel has submitted that the Petitioner is also

an offender under the Foreign Trade (Development and Regulation) Act

1992, for which, the above cases were booked against him and a

Detention Order although was also issued against him under the

COFEPOSA Act, 1974, but was later quashed by this Court.

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30. Mr. Jetly, learned Senior Counsel for the Respondents No.1 to 3

has submitted that the cases booked, the arrest made and the Detention

Order issued against the Petitioner establishes the antecedents of the

Petitioner and which belies his claims that he was neither a convict nor

has been penalized in any proceedings under the Customs Act. Mr.

Jetly, has submitted that the order dated 10th April, 2003 of the

Settlement Commission states that the action of the Petitioner was

incorrect as per law which underlines the doubtful antecedents and

credentials of the Petitioner.

31. Mr. Jetly, learned Senior Counsel has further submitted that the

Petitioner has suppressed material facts and made misleading

statements, levelled various allegations against officers of DRI without

furnishing any prima facie proof in support thereof.

32. It has also been submitted by Mr. Jetly, with respect to the

allegations made by the Petitioner by letter dated 9 th January, 2015,

that Respondents No.5, 6 and 7 were resorting to fraud, mis-

representation and suppression of facts (under valuation) in import of

luxury cars into India from related parties to dupe the Central

Government of its legitimate customs duties, that no evidence in

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support of these allegations has been furnished by the Petitioner nor

the same is forthcoming. Mr. Jetly, learned Senior Counsel has

submitted that after about three months, the papers submitted by the

Petitioner were returned with advice to approach the DRI with credible

evidence of the alleged fraud and under-valuation.

33. Mr. Jetly has submitted that in the Criminal Writ Petition No.20

of 2016 filed by the Petitioner on 28th January, 2016, before the Hon'ble

Supreme Court of India, a detailed affidavit dated 17 th March, 2016,

was filed by the DRI furnishing details, circumstances and reasons for

not recording DRI-1 on the information provided by the Petitioner. Mr.

Jetly, learned Senior Counsel has submitted that after hearing both the

sides the Hon'ble Supreme Court disposed of the said Petition vide

order dated 15th July, 2016 by passing the following order. The relevant

paragraphs are as under :

"Having heard learned counsel for the parties, we are of the considered opinion that the writ petition can be disposed of at this stage by permitting the petitioner to file documents before Additional Director, Directorate of Revenue Intelligence (DRI), Mumbai within eight weeks hence. Thereafter, the said authority shall intimate the petitioner so that the petitioner can appear and explain and answer the queries of the authorities. As further agreed to by learned Counsel for the parties, the petitioner shall also cooperate as Mr. Nanda would emphatically put forth that the petitioner has filed this writ petition for the national cause. If the Additional Director, DRI, Mumbai Zone is convinced that

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there is credible information given by the petitioner, he shall take appropriate action, as advised in law. The writ petition is accordingly disposed of. There shall be no order as to costs."

34. Mr. Jetly, learned Senior Counsel has further submitted that by

letter dated 9th September, 2016, the Petitioner has submitted certain

information along with annexures to the DRI and that the same was

examined by the DRI. Mr. Jetly would submit that the Petitioner had

made a request for expeditious preliminary enquiry for considering

registration of Information Report/DRI-1 and commencing

investigation into alleged cognizable offences punishable under the

Customs Act for the alleged evasion of customs duties in the import of

luxury cars whether as Fully Built Units (FBUs) or in CKD/SKD form

when imported from related parties. Mr. Jetly, learned Senior Counsel

has submitted that the information furnished in the letters appear to be

general in nature and was found to contain sweeping allegations

against five corporate houses. Besides, in para 7 of the said letter the

Petitioner expressed desire that he would like to place further material

on record to assist the investigation. The Petitioner was thereafter

requested to visit the DRI office with all additional material. It is

submitted that the Petitioner thereafter visited the office on 4 th October,

2016 and the information was discussed at length with him and that

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the Petitioner informed the officers thereafter that he had no additional

material and would require some more time to do so.

35. That thereafter, on 16th November, 2016, the Petitioner once

again visited the DRI office and expressed his desire to meet the

Additional Director and the other officers of DRI. The Petitioner stated

that he had specific details of import of certain consignments of

Respondent No.5 viz. Mercedes - Benz India Pvt. Ltd. suspected to be

imported fraudulently and that he was in the process of gathering

specific details about the consignments of the remaining four importers

mentioned in his letter dated 9 th September, 2018. The Petitioner

agreed to furnish the details of specific consignments imported by

Respondent No.5 for which DRI-1 would be recorded and an enquiry

would be initiated by DRI, Mumbai.

36. It is submitted that thereafter, by letter dated 25 th November,

2016, the Petitioner furnished details of a few consignments imported

by Respondent No.5 and alleged mis-declaration of description and/or

value and also visited DRI office on 29 th November, 2016 and once

again requested that the information in respect of the said information

furnished by letter dated 25th November, 2016, DRI-1, may be recorded

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and an enquiry be initiated against the Respondent No.5. Accordingly,

DRI-1 was recorded on 7 th December, 2016, regarding the alleged

fraudulent imports by Respondent No.5.

37. Mr. Jetly, learned Senior Counsel has submitted that immediately

thereafter a thorough investigation was conducted by the DRI under

the supervision of Additional Director General, in compliance of the

Order of the Hon'ble Supreme Court dated 15th July, 2016.

38. Mr. Jetly learned Senior Counsel has submitted that despite a

detailed investigation, no case of evasion on duty of importation of

luxury cars on under-stated values by Respondent No.5 could be made

out.

39. Mr. Jetly, would submit that thereafter, by three separate letters

dated 27th May, 2019, 10th July, 2019 and 19th August, 2019, the

Petitioner was requested to furnish additional information / documents

(if any) in his possession to substantiate the charges of undervaluation.

However, it is submitted that the Petitioner failed to respond to any of

the aforesaid letters.

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40. It is submitted that after examining all documents, records and

the relevant legal provisions and pronouncements, the Investigation

against Defendant No.5 was closed on 16 th September, 2020 after a

period of almost four years of investigation. It is submitted that the

investigation was supervised at various times by two Deputy Directors,

Four Additional/Joint Directors and Two Principal Additional Directors

General.

41. Mr. Jetly, would submit that meanwhile, Civil Writ Petition (PIL)

No. 9425/2020 was filed by one Arvind Alaru vs Union of India & Ors.

before the High Court of Rajasthan, wherein the Petitioner above

named was made a favoring Respondent i.e. Respondent No. 5 in the

petition. It is submitted that the issues raised in that Petition are similar

to the ones raised herein and that hearing in the said case has already

taken place and the answering Respondent was directed vide order

dated 03rd September, 2020 to indicate the actions taken based on the

directions given by the Hon'ble Supreme Court in Criminal W.P. No.

20/2016 filed by the Petitioner. It is submitted that accordingly, DRI

filed its reply before the Rajasthan High Court on 25 th November, 2020

and although the next hearing in the Petition was due on 13 th May,

2022, however, as per the court's website, no further update is

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available. That present Petition has been filed despite having

knowledge of the fact that a similar issue is already pending before the

Rajasthan High Court for its decision.

42. It has been submitted that the Petitioner is not acting bona fide

and has personal gain or private motive or political motivation or other

oblique considerations, in mind and therefore this Court may dismiss

the petition with costs. Mr. Jetly has relied upon the decisions of the

Hon'ble Supreme Court in the case of Holicow Pictures (Private) Ltd.

vs. Prem Chandra Mishra and Ors. reported in 2007 (14) SCC 281.

43. Mr. Jetly has submitted that the Hon'ble Supreme Court in

Dattaraj Nathuji Thaware V. State of Maharashtra reported in 2005 (1)

SCC 590 has taken a view that when frivolous petitions are filed before

the Court, such petitions must not only be dismissed but exemplary cost

must also be imposed by the Courts so that a larger message is sent that

petitions filed with oblique motive do not have the approval of the

courts.

44. Mr. Jetly would submit that a bare perusal of the Petition would

reveal that the allegations levelled by the Petitioner are totally

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unfounded and no actionable data or document, whether primary,

secondary or otherwise, has been produced by the Petitioner in support

of his allegations or claim.

45. Mr. Jetly, would submit that it is a statutory obligation and duty

of the Respondents to investigate into offences committed under the

said Act, and the Petitioner cannot be allowed to seek any prayer under

Article 226 of the Constitution to settle purported personal scores or to

achieve any personal gain in the garb of filing this petition.

46. It is submitted that orders passed under Section 92CA(3) of the

Income Tax Act, 1961 by the Income Tax (Transfer Pricing) authorities

Pune in respect of Respondent No. 5 for AY 2015-16 and AY 2014-15

have been scrutinized. In both the said Orders, the Income Tax

authorities have not disturbed the "Arm's Length Price" of transactions

as reported by Respondent No.5. Further, scrutiny of the Financial

statements of Respondent No.5 for the past years does not indicate any

remittance / transfer of funds to Daimler AG (related to import of

cars), over and above the Import invoice value. Besides, all the

Agreements entered between Daimler AG and Respondent No.5, have

been scrutinized thoroughly. However, no provision relating to any flow

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back of fund from Respondent No.5, Pune to Daimler AG, Germany

(other than towards the Invoice Value of the cars) or any other

consideration for the foreign supplier relatable to import of cars was

noticed. Scrutiny of the Agreements (between Daimler AG and

Respondent No.5, Pune) and the Financial Statements of MBIPL, Pune

indicate that there are several Agreements viz. Agreement for

Assistance, Long Term Consultancy Agreement etc. by which various

services like IT, Financing, Planning, Legal, Insurance etc. are provided

by Respondent No.5 to Daimler AG, Germany for which amounts are

being remitted by Daimler AG, Germany to Respondent No.5. It has

been submitted that thus, the flow of money under these Agreements is

two ways-from Daimler AG, Germany to Respondent No.5 and vice

versa. That this supports the fact that the transactions between them

are at arm's length. After examining all the above documents and

relevant legal provisions, the Investigation against Respondent No.5,

Pune was closed.

SUBMISSIONS OF RESPONDENT NO.4

47. The Respondent No.4 as mentioned is the Director General of

Valuation has also filed an affidavit in the Petition. It has been

submitted that the contention of the Petitioner that from 1 st January,

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2013, all SVBs are under the control of Director General of Valuation is

factually incorrect. That although there was a circular in 2012 vesting

functional control over the SVBs, the said circular had been withdrawn

in the year 2016 and that now the SVBs function under the supervisory

control of the jurisdictional Chief Commissioner/ Principal

Commissioner/ Commissioner and the Director General of Valuation,

continues to support the SVBs issuing advisories on legal issues and

guidance notes. That the role of the Director General of Valuation is

only limited to facilitate coordination amongst the SVBs. It has also

been submitted that the Director General of Valuation is not entrusted

with assessment work but only assisting the Board in Policy matters

concerning Customs Valuation.

48. Pertinently it has been submitted that the Petitioner has

approached this Court without availing of alternate remedy by filing

appropriate proceedings before an appropriate forum of the

Respondents No. 1 to 3 and that the Director General of Valuation is

not a necessary party to the Writ Petition and may be deleted.

49. Mr. Jetly would however submit that files/records pertaining to

Respondent No.5 available in the Special Valuation Branch (SVB), New

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Custom House, Mumbai were called for and examined. It was noticed

that from the year 2005 till 2020, Special Valuation Branch, New

Custom House, Mumbai has passed five Orders for five different

periods after detailed scrutiny of the relevant documents of the

importer viz. Respondent No.5 pertaining to transaction value. That

vide each of the above Orders, the declared invoice value has been

accepted as the Transaction value in terms of Section 14 of the said Act,

read with the Customs Valuation (Determination of Value of Imported

Goods) Rules, 2007. It is submitted that further, from the enquiry

conducted by the DRI, it does not appear that Respondent No.5, Pune

have made any mis-representations in the proceedings before the SVB,

New Custom House, Mumbai.

50. Mr. Jetly would submit that the Petitioner has specifically

admitted and recognized that in a PIL being D B Civil WP (PIL) 9425 of

2020 filed by one Mr. Arvind Alaru before the Rajasthan High Court is

pending after issuance of notice, wherein the Petitioner herein was

made Respondent No. 5 as the first informant of the issue raised in the

said PIL. Mr.Jetly would submit that it appears that the PIL was filed at

the behest of the Petitioner which is why he was joined as a friendly

Respondent. Unless the Petitioner had not disclosed the fact of filing

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DRI-I to Shri Arvind Alaru, he would have no way of coming to know

about that fact.

51. Mr. Jetly, learned Senior Counsel has submitted that the

Petitioner has solely placed reliance upon the information given by him

to DRI in furtherance of contents of the Writ Petition (Criminal) No. 20

of 2016 filed by the Petitioner before the Hon'ble Supreme Court. That

the Hon'ble Supreme Court disposed of the Writ Petition (Criminal) No.

20 of 2016 vide Order dated 15th July, 2016. In Order dated 15th July,

2016, the Hon'ble Supreme Court directed the Petitioner to file relevant

documents before Additional Director, DRI in support of his claim.

Accordingly, the Additional Director, DRI, Mumbai after taking into

consideration and after thorough examination of the evidences placed

by the Petitioner and evidences found during the investigation and with

the approval of the Additional Director General, DRI, Mumbai, decided

to close the investigation for want of any incriminating material

indicating evasion of customs duty as alleged by the Petitioner. It is

reiterated that before closure of the investigation, three letters were

sent to the petitioner dated 27th May, 2019, 10th July, 2019 and 19th

August, 2019 seeking the additional information/ documents

pertaining to the enquiry being conducted by DRI, MZU into import of

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SUVs and vehicles caused by Respondent No. 5, however, the Petitioner

chose not to reply to any of the said letters. As the department did not

find any incriminating evidences even after thorough investigation

spanning over a period of almost four years, the investigation in the

matter was closed after sharing the Investigation Report with DG, DRI,

New Delhi. In the garb of a fresh petition before this Court, the issue

already investigated by DRI and closed for want of any evidences

should not be allowed to be re-opened merely on the basis of bald,

baseless, unfounded and frivolous allegations. It is submitted that in

view of the above, the aforesaid petition is not maintainable with

totally misconceived, misleading and devoid of substance, and has been

filed with an oblique motive, hence, same is liable to be

rejected/dismissed with exemplary costs.

52. By order dated 14th February, 2022 and 28th March, 2022, parties

were directed to file affidavits, reply and rejoinder. Thereafter, time was

granted, replies and rejoinders were filed.

53. The Respondents in their replies had taken a serious objection

about the locus and bonafides of the Petitioner.

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54. Accordingly, on 29th November, 2022, the Court had recorded the

same. The said order is usefully quoted as under :

" Heard the learned Counsel for the parties.

2. A serious objection is taken by the Respondents about locus and bonafides of the Petitioner. What is placed before us is not a public interest litigation. We had put to the learned Counsel for the Petitioner that the Petitioner shall at least disclose full particulars about himself so as to satisfy conscience of the Court that the Petitioner is indeed prosecuting this petition in larger public interest litigation and is not a mere busy body. Inspite of repeated stating so, the learned Counsel for the Petitioner has refused and therefore, it is not possible for us to pass any order unless the Petitioner discloses all the particulars as above.

3. Remove the petition from board. To come up in regular course.

4. At this stage of dictation; The learned Counsel for the Petitioner tenders apology and states that additional affidavit giving all particulars about the Petitioner and whether the Petitioner had taken social causes, whether any action is taken against him etc., from which the Court can discern that the Petitioner is a bonafide litigant will be filed within one week from today.

5. Earlier order recalled. Stand over to 19th December 2022."

55. This Court had also recorded that what was placed before the

Court was not a Public Interest Litigation and, therefore, the bench had

put to the learned Counsel for the Petitioner that the Petitioner shall at

least disclose full particulars about himself so as to satisfy the

conscience of the Court that the Petitioner was indeed prosecuting this

Petition in larger public interest and not merely as a busy body. It was

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recorded that in spite of repeatedly stating so, learned Counsel for the

Petitioner had refused and therefore it was not possible for the Court to

pass any order unless the Petitioner disclosed all the particulars sought

for and the matter was removed from the Board to come up in regular

course. However, at the stage of dictation, learned Counsel for the

Petitioner tendered apology and stated that an additional affidavit

giving all particulars about the Petitioner would be furnished from

which the Court could discern that the Petitioner was a bonafide

litigant and therefore the earlier order of removal of the matter from

the board was recalled and the matter was stood over.

56. On 27th January, 2023, when the matter was listed, the Petitioner

had filed an additional affidavit and the revenue had also filed reply to

the same also taking up the issue of locus and bonafides of the

Petitioner. The Respondent No.6 sought further time to file reply to the

additional affidavit and the matter was directed to be listed on 06 th

February, 2023. The Court had clearly recorded in the said order that

on 06th February, 2023, first the Petition would be heard on the

question of locus of the Petitioner raised by the Respondents. The said

order is usefully quoted as under :-

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"1. Pursuant to the order dated 29th November 2022 petitioner had filed additional affidavit, which reply filed on behalf of the revenue. Respondent No.6 states that reply to the additional affidavit is ready and be filed within two working days with copy to the other side.

2. List the petition at the bottom of board on 6 th February 2023.

On 6th February 2023 the parties are put to notice that first petition would be heard on the question of locus of the Petitioner raised by the Respondents.

3. Learned counsel for the Respondents state that a note giving a background of the litigation would be circulated before the next date."

57. Thereafter, on 10th February, 2023, the matter was stood over to

13th February, 2023 and thereafter due to paucity of time the matter

could not be taken up.

58. It appears that in the meanwhile, the Petitioner approached the

Hon'ble Supreme Court of India against the order dated 29 th November,

2022 as well as order dated 27th January, 2023 and after hearing the

Counsel for the Petitioners, the Hon'ble Supreme Court, by order dated

29th March, 2023, in view of the record that the Supreme Court had

entertained the writ petition filed by the Petitioner under Article 32 of

the Constitution of India and passed order dated 15 th July, 2016

thereon being satisfied that the Petitioner had locus to approach the

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High Court for the reliefs claimed in the Writ Petition filed by him and

being of the considered opinion that the interest of justice would stand

served if, a bench would be nominated to hear the writ petition

expeditiously within a period of three months, since the issue involved

had lot of cascading effect on the revenue, directed the High Court to

proceed to consider and decide the writ petition in accordance with law

on its own merits without entering into the question of locus of the

Petitioner to maintain the writ petition.

59. Accordingly, on 3rd April, 2023 the Court passed the following order

in view of the order passed by the Hon'ble Supreme Court and listed the

matter on 17th April, 2023, to enable the Registry to take necessary steps

as per the order of the Hon'ble Supreme Court dated 29 th March, 2023 :

" The writ petition was on board last week at Serial No.9 of the Weekly Supplementary Board for final disposal of the matters which is taken every day after daily matters are over. Today, the petition is placed on board under the caption "For Directions" in view of the order passed by the Hon'ble Supreme Court dated 29 th March 2023 in SLP (Civil) No.12911/2023.

2. Stand over to 17th April 2023 to enable the Registry to take necessary steps as per the order passed by the Hon'ble Supreme Court dated 29th March 2023."

60. Thereafter, pursuant to an administrative order of the Acting

Chief Justice, this bench had been constituted as a Special Bench to

hear and decide the Petition.

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61. When the matter was listed on 17th April, 2023, time was sought

to file reply to the Interim Application. The said order is usefully

quoted as under.

"1. Perused the order passed by the Hon'ble Supreme Court. The petition is assigned to this Bench as per the administrative order. Place the petition on board on 25th April 2023 for hearing."

62. On 25th April, 2023, when the matter was listed, the following

order was passed.

" This petition has been listed before this bench as Special Bench as per the administrative order of the Acting Chief Justice for disposal in the light of the order passed by the Supreme Court dated 29th March 2023 in S.L.P. (Civil) No.12911/2023. By this order, the Hon'ble Supreme Court has observed that the petition requires to be disposed of within a period stipulated in the order. However, when the petition is taken up for disposal, the learned Counsel for the Petitioner drawn our attention to the pending interim applications.

2. Interim Application No.1553/2022, the Petitioner seeks to join Directorate of Revenue Intelligence, Bangalore as party- respondent and corresponding prayer. Interim Application (L) No.9540/2023 is filed on 3rd April 2023 to incorporate additional final prayers in terms of the schedule. Interim Application (L) No.9504/2023 is filed on 3rd April 2023 seeking certain interim reliefs. Both, Interim Application (L) Nos.9540/2023 and 9504/2023 have been filed after the order is passed by the Supreme Court on 29th March 2023.

3. As regards the amendments, the learned Counsel for the Respondents state that amendment can be granted but adequate time be given to the Respondents to deal with the amended prayers and pleadings which have been sought by way of amendment.

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4. Accordingly, we allow Interim Application No.1553/2022 and Interim Application (L) No.9540/2023. As regards the adding of Directorate of Revenue Intelligence, Bangalore as party Respondent is concerned, the amendment to be carried out forthwith. The learned Counsel appearing for Respondent No.3- Directorate of Revenue Intelligence waives notice on behalf of the added Respondent. As regards other amendments are concerned, the same be carried out within one week. Since the amendments are moved on application, re-verification is dispensed with.

5. In view of nature of prayers sought by way of amendment, learned counsel for the Respondents seek time to file additional reply, to which the Petitioner has no objection for granting time to the Respondents to file additional reply. Additional reply to the added portion of the petition to be filed before the next date.

6. In view of the ensuing Summer Vacation from 5th May 2023 to 4th June 2023, list the writ petition for further hearing on 9th June 2023.

7. As far as Interim Application (L) No.9504/2023 is concerned, at the request of the learned Counsel for the Petitioner, list this interim application on 2nd May 2023."

63. On 2nd May, 2023, the following order was passed.

" This interim application is taken out on 3 rd April 2023. As regards the main writ petition is concerned, by order dated 25 th April 2023 we have listed the petition for further hearing on 9 th June 2023 in view of the ensuing Summer Vacation.

2. Having considered the averments made in the application and the prayers made therein, we are of the opinion that for deciding the application, the merits of the petition will have to be substantially heard. The petition is fixed for hearing on 9 June 2023. Therefore, we deem it appropriate that hearing of the present application is deferred to 9th June 2023. Order accordingly.

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3. Replies to the application and rejoinder, if any, to be filed before the next date."

64. On 9th June, 2023, the matter was listed for directions before the

Special Bench and by consent of parties, the matter was placed on 16 th

June, 2023 at 03:30 p.m. and the following order was passed :

" The matter is placed under the caption "For Directions"

before the special Bench. By consent of parties we place the Petition for further hearing on 16th June 2023 at 3.30 p.m.

2. The learned Counsel for the Petitioner states that Interim Application (Lodg.) No.13047 of 2023 is filed in respect of two reliefs: on for removal of three affidavits filed by one Dr. Sandeep Gunjal and secondly, to direct the Central Board of Customs and Indirect Taxes to file an affidavit in response.

3. As regards the first point is concerned, learned Counsel for Respondent Nos.1 to 3 accepts that the affidavits of Dr. Sandeep Gunjal ought not to have been filed and states that an affidavit sworn by the Sunil Kumar Mall, Principal Additional Director General, Directorate of Revenue Intelligence, Mumbai is now filed. The learned Counsel for the Petitioner states that he will examine the issue.

4. As regards the second relief that is sought, we are of the opinion that the hearing of the matter has to first commence in the light of the time bound directions and thereafter, once the hearing commences, we will be able to appreciate the prayers made by the Petitioner in better light so that appropriate orders can be passed."

65. On 23rd June, 2023, the following order was passed where it was

recorded that the learned Counsel for the Petitioner had completed his

arguments :

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"Matter is heard by this specially constitued Bench. The learned Counsel for the Petitioner has completed his arguments. He states that compilation of judgments with emphasis on passages relied upon would be filed by the next week. Stand over to 7 th July 2023 for arguments of the Respondnets."

66. On 7th July, 2023, the following order was passed as the

arguments of learned Senior Counsel for the Respondents No.5 and 7

were yet to be concluded.

"The arguments of the learned Senior Advocte for the Respondent Nos.5 and 7 to be continued on the next date.

2. Stand over to 21st July 2023 at 2.30 p.m."

67. On 28th July, 2023, the Special Bench had recorded that

arguments had been concluded on behalf of the Petitioner and

thereafter the arguments on behalf of the Respondent No.5 as above

were also over. The contention of the Respondent No.5 was that the

investigation had already been conducted and concluded by the DRI

and that there is no need for further investigation.

68. During the said hearing, this Bench had put a query to the

learned Senior Counsel for the DRI as to the stand of the DRI in respect

of the other private respondents viz. Respondents No.6 and 7. The

Learned Senior Counsel for the DRI had submitted that the Petitioner

had not submitted any material in respect of the said Respondents

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inspite of having been given an opportunity. Learned Senior Counsel for

the DRI had submitted that the material now placed on record by the

Petitioner would be examined. This Court had accordingly recorded

that if the Petitioner intends to file any additional material he can give

the same within a particular time period and that after examining the

material thoroughly the Court would be informed of the course of

action the DRI intended to take.

69. Accordingly, the learned Senior Counsel for the Petitioner

submitted that if there was any additional material the same would be

given to the DRI within a period of three weeks with a copy to the

concerned private Respondents and the learned Senior Counsel for the

DRI had stated that the DRI would take 6 weeks after the Petitioner

submitted the additional information.

70. Accordingly, at the request of the learned Senior Counsel for the

DRI, the matter was stood over to 05 th October, 2023. By the said order,

the learned Senior Counsel for the Petitioner agreed that in view of the

aforesaid course of action, the Petition could not be decided within the

time limit of 3 months stipulated by the Hon'ble Supreme Court and if

necessary, the Petitioner would request for an extension.

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SUBMISSION OF THE LEARNED ASG

71. Thereafter on 05th April, 2024, Mr. Devang Vyas, learned

Additional Solicitor General of India has addressed this Court on behalf

of the Respondent Statutory Authorities based on the Affidavit dated

28th September, 2023 filed under directions of this Court by order dated

28th July, 2023 on behalf of the Respondents No.1 to 4.

72. Learned ASG would submit that the said affidavit has been filed

as the Hon'ble Court had queried the learned Senior Counsel of

Respondents No.1 to 3 regarding the stand of D.R.I. in respect of other

Private Respondents i.e., M/s. Skoda Auto Volkswagen India Private

Limited (SAVIPL)- Respondent No.6 and M/s. BMW India Private

Limited (BIPL) - Respondent No.7.

73. Learned ASG would submit that the learned Senior Counsel for

Respondents No.1 to 3 had submitted that the Petitioner had not

submitted any material in respect of these Respondents and the

material placed now on record by the Petitioner would be examined

and further that if the Petitioner intended to file any additional

material, he could give the same within a particular time, and after

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examining the said material thoroughly, the Hon'ble Court would be

informed of the course of action the D.R.I would propose to take.

74. Learned ASG would submit that the Petitioner submitted certain

information in respect of Respondent No.6 and Respondent No.7

through an email dated 16th August, 2023.

75. That thereafter, after thoroughly examining all the information

submitted by the Petitioner in respect of Respondents No.6 and 7,

preliminary objections have been raised as to the maintainability of the

issues raised in respect of Respondents No.6 and 7.

76. Learned ASG would submit that the Petitioner has submitted that

Respondent No.6 is importing Luxury Cars viz. 'Porsche', 'Audi',

'Lamborghini' etc. from related parties viz. M/s. Automobili

Lamborghini, Italy, M/s. Audi, Germany and PORSCHE Middle East &

Africa FZE, Dubai, UAE by mis-declaration and suppression of material

particulars from the Customs Authorities. Similarly, the Petitioner has

alleged that Respondent No.7 is importing Luxury Cars from related

parties, mainly BMW AG, Germany, whether as Fully Built Units (FBUs)

or in Completely Knocked Down (CKD) condition by mis-declaration

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and suppression of material particulars from the Customs Authorities

and that the said Respondents are importing these luxury cars at

ridiculously low and unrealistic prices.

77. In response to the same, the learned ASG submits that the

information provided by the petitioner vide his email 16.08.2023 is

very generic and is an analysis made by him mostly based on

information available in open source which is otherwise also available

to the assessing officers and the investigating agencies. That in fact, in

the details submitted by the Petitioner in respect of Respondent No.6

and Respondent No.7 only the names of the car manufacturers have

been changed and the content is by and large the same. In other words,

the Petitioner's claim is sweepingly general to all luxury car imports by

various multinational brands and is not specific.

78. It is further submitted that while levelling allegations against

Respondent No.6 and Respondent No.7, the Petitioner has heavily

relied upon the following factors :

(i) Purchase prices in other countries/regions such as the Middle East

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(ii) Retail prices/Website prices in the UK and Germany which were

mentioned on www.audi.co.uk, www.hrowen.co.uk, www.bmw.co.uk

etc.

(iii) Comparison of import prices of cars that have been imported into

India as a one-off case by unrelated parties in India with prices

declared by related parties.

(iv) Prices available in published magazines such as Auto Expres Cars,

Top Gear etc.

(v) The alleged misrepresentation and suppression of facts by

Respondents No. 6 & 7 before the Special Valuation Branch (S.V.B)

authorities.

79. That the petitioner has sought to make comparisons of purchase

prices in other countries/regions, retail prices/website prices in other

countries, prices available in published magazines, and import prices by

unrelated parties with the import prices declared by Respondents No.6

and 7. However, it is submitted that such comparison is neither logical

nor legal and is not allowed as per the Customs Valuation Rules, 2007.

80. Learned ASG would submit that Section 14 of the Customs Act,

which lays down the provisions for valuation of goods for the purpose

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of assessment of customs duty, has undergone a lot of changes since its

inception. Prior to 2007, the concept of "deemed value" was very

significant as the then Section 14(1) of the Customs Act, 1962 stated

that the value of the imported goods shall be the deemed price at

which such or like goods are ordinarily sold or offered for sale, for

delivery at the time and place of importation in the course of

international trade. That therefore, prior to 2007, the assessing officer

ought not to see the actual value of the goods, but the value at which

such goods or like goods are ordinarily sold or offered for sale for

delivery at the time and place of import. Similarly, the words "in the

course of international trade" it is submitted are also of great

importance. The assessing officer ought to see the value of the goods

not for each specific transaction, but the ordinary value which the

goods would have in the course of international trade at the time and

place of their import. That India continued to have the deeming

provision in the Customs Act, 1962 as well as in the Valuation Rules,

1988.

81. It is submitted that in 2007, Section 14 of the Customs Act was

amended vide the Finance Act, 2007. The Statement of Objects and

Reasons and the Notes on Clauses - Customs, Customs tariff, Excise

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explained the reason for the introduction of the amendment in Section

14 of the Customs Act, 1962 as below.

"Clause 86 seeks to amend section 14 of the Customs Act, 1962 which

relates to valuation of goods for the purposes of assessment. The

existing sub-section (1) of section 14 is based on concept of the deemed

value of goods, but sub-section (1A) of section 14 mandates that the

price in respect of imported goods shall be determined in terms of the

rules made in this behalf and the rules framed thereunder are based on

the concept of "transaction value" as enshrined in the World Trade

Organisation Valuation Agreement. Because of the inherent

contradiction in the two concepts of "deemed value" and "transaction

value", practical difficulties are being faced in implementation of the

valuation provisions of the Customs Act. There has been felt a need to

substitute the concept of "deemed value with the concept of

"transaction value","

Accordingly, it is proposed to substitute section 14 of the said Act wit

goods shall be the transaction value of such goods, as determined

accordance with the rules made in this behalf. It is further proposed to

provide that the transaction value in the case of imported good

specified in sub-section (1) shall include any amount that the buyer is

liable to pay for costs and services, including commissions and

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brokerage, assists, engineering, design work, royalties and licence fees,

costs of transportation to the place of importation, insurance, and

handling charges. It is also proposed to provide that where there is no

sale or the transaction value of the imported goods or export goods is

not determinable, the value of such goods shall be determined in

accordance with the rules made in this behalf. The said clause shall

come into force from such date as the Central Government may, by

notification in the Official Gazette, appoint."

Learned ASG would submit that therefore with the amendment of

Section 14 of the Customs Act, 1962 in 2007 as well as with the

introduction of the Customs Valuation Rules, 2007, there is no place for

relying on the concept of deemed value, and the "transaction value"

took the primary position.

82. That as per the new Section 14 of the Customs Act, 1962 that

was introduced vide the Finance Act, 2007, the value of the imported

goods is the transaction value of such goods, that is, the price actually

paid or payable for the goods when sold for export to India for delivery

at the time and place of importation, where the buyer and seller of the

goods are not related and the price is the sole consideration for the sale

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subject to such other conditions as may be specified in the rules made

in this behalf.

83. Learned ASG has submitted that Rule 12 of CVR, 2007 empowers

the assessing officer to reject the transaction value declared by the

importer. However, this power is to be exercised sparingly and only in

cases where there lie genuine doubts related to the authenticity of the

declared value. That this principle was followed in a catena of

judgments of the Apex Court which held that the transaction value

cannot be rejected except for the grounds laid down under the

Valuation Rules. Learned ASG has relied upon the decision of the

Hon'ble Supreme Court in the case of Century Metal Recycling Pvt. Ltd.

v. Union of India [2019 (367) E.L.T. 3 (S.C.)] where the Hon'ble

Supreme Court, in Para 18 of its decision, has held that,

"It is only in case where the doubt of the proper officer persists after conducting examination of information including documents or on account of non-furnishing of information that the procedure for further investigation and determination of value in terms of Rules 4 to 9 would come into operation and would be applicable. Reasonable doubt will exist if the doubt is reasonable and for 'certain reasons' and not Ideas fanciful and absurd. A doubt to justify detailed enquiry under the proviso to Section 14 read with Rule 12 should not be based on initial apprehension, be imaginary or a mere perception not founded on reasonable and 'certain' material. It should be based and predicated on grounds and material in the form of 'certain reasons' and not me reasons would be contrary to the scheme

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and because one is distrustful and unsure without reasonable and certa purpose behind the provisions which ensure quick and expeditious clearance of import goods."

84. Learned ASG submits that the decision of the Hon'ble Supreme

Court in Para 11 of its judgment in CC Vishakhapatnam v. Aggarwal

Industries Ltd. [2011 (272) EL 641 (SC)] has held that,

"reason to doubt' does not mean reason to suspect'. A mere suspicion upon the correctness of the invoice produced by an importer is not sufficient to reject it as evidence of the value of imported goods. The doubt held by the officer concerned has to be based on some material evidence and is not to be formed on a mere suspicion or speculation."

85. It has been submitted by the learned ASG that contrary to what

the Hon'ble Supreme Court has laid down in the aforesaid judgments,

the Petitioner has been speculating on undervaluation by Respondents

6 and 7 without any hard evidence and is demanding an investigation

into the matter based on mere suspicion.

86. Learned ASG would submit that the following facts further

counter the speculative reasoning put forward by the Petitioner in his

submissions :

a) The retail sale price of same or similar cars in a country other than

India cannot be a basis for the valuation of cars at the time of import of

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the same into India. It is submitted that the same is specifically barred

by Rule 9(2) of the Customs Valuation Rules, 2007 which states that

"No value shall be determined under the provisions of this rule on the

basis of -(v) - the price of the goods for the export to a country other

than India".

b) Further, Customs Valuation Rules, 2007 also prescribe that no value

shall be determined under the provisions of Rule 9(2) based on the

price of goods in the domestic market of the country of exportation.

c) Also, the GATT valuation agreement states that valuation based on

the price of goods in the domestic market of the country of exportation

would go against the principle that valuation procedures should not be

used to combat dumping.

d) The cars available in other countries may not be similar in

specifications/technology and, hence, it is otherwise also not

reasonable to compare the prices of cars merely based on similarity of

description.

87. It is also submitted that the Petitioner has erred in making a

comparison of the price of one-off cars imported by unrelated parties in

India with the cars imported by Respondents 6 and 7 in India. That

hundreds of cars are imported into India by the related parties i.e.,

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Respondents 6 and 7 as compared to one or two cars by unrelated

parties. It is submitted that the value of goods can only be compared if

they are contemporaneous and of similar commercial quantity.

Transaction value declared by the importers cannot be rejected merely

based on import by an unrelated party without considering other

commercial factors. Further, that the two sample Bills of Entry

submitted by Petitioner have been examined and it has been observed

that in both the case of imports by unrelated parties, the import is on a

High Seas Sale basis and, hence, the sale is at a premium to adjust for

dealer's margins and for various costs such as marketing, distribution,

logistics, etc. That this ensures that the retail price at which the cars are

sold by the retailers to end customers is nearly the same as the prices of

cars when imported on a High Seas Sale basis. It is also submitted that

just by subtracting the High Seas Sale loading value from the overall

assessable value as declared by the unrelated parties, the import prices

closely approximate to the prices declared by the related parties. It is

submitted by an example, that the Bill of Entry No. 8863665 dated 26 th

December, 2012 and Bill of Entry No. 8750215 dated 13 th December,

2012 that were submitted by the Petitioner as part of the documents

sent by him vide email dated 16th August, 2023 were examined. In the

Bill of Entry No. 8863665 dated 26th December, 2012, it was observed

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that the assessable value was Rs. 2699668.90 which included the High

Seas Sale Loading Amount of Rs. 441138. That therefore after

subtracting this amount, the value arrived at Rs. 2258530.90 which is

comparable to the assessable value of Rs. 1993820 in Bill of Entry No.

8750215 dated 13th December, 2012 filed by Respondent No.7 given

that imports by unrelated parties may include other fittings and

accessories in addition to the standard components.

88. It has been further submitted that the department as always been

at the forefront in taking appropriate action whenever actionable

intelligence in the form of credible documentary evidence is available

with the department. That a Show Cause Notice vide F.No.

DGCEI/MZU/I & IS'C'/30-81/06 dated 31st March, 2008 was issued to

Respondent No.6 by the DGCEI, Mumbai in respect of valuation.

89. Learned ASG would submit that unlike in the present writ

petition where the Petitioner is demanding a roving inquiry based on

mere hunches and accusations without any credible documentary

evidence that is actionable, the aforesaid Show Cause Notice was based

on very specific intelligence with the department that USD 45 million,

which was paid by Respondent No.6 to M/s. Skoda Auto AS, Czech

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towards "Technical know-how/Technological Transfer Fees", has not

been included in the value of the imported cars. It is also submitted

that, presently, the issue is pending before the Hon'ble Supreme Court

of India.

90. That all the Bills of Entry filed by Respondent No.6 for the import

of cars, parts, and accessories, have been assessed provisionally since

then.

91. It is further submitted that Respondent No.7 also has been issued

with a Show Cause Notice vide F.No. DRI/DZU/JRU/19/ENQ-1(INT-

1)/2014/ 679-690 dated 29th May, 2015 by the D.R.I., Delhi Zonal

Unit. In this case, too, the Show Cause Notice has been issued based on

very specific intelligence with the department that the Brand Promotion

Expense incurred by Respondent No.7 on behalf of their related foreign

supplier has not been included in the value of the cars imported by

them unlike in the present case where the Petitioner is levelling

sweeping allegations without any concrete evidence sufficient to cause

investigation into the matter. Further, it informed that the Bills of Entry

filed by Respondent No.7 for the import of cars are being assessed

provisionally at present.

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92. Learned ASG submit that the Petitioner has alleged that

Respondent No.6 and 7 have suppressed the Price Pattern from SVB

Authorities which is required to be provided, as per the Board's

Circulars, to arrive at a decision to accept or reject the declared value.

That the Petitioner has also alleged that the prices declared by

Respondent No.7 to the Special Valuation Branch (SVB) are not in the

ordinary course of business under fully competitive conditions and the

Orders obtained from the SVB are based on false

undertaking/affidavits/assurance that their admitted relationship with

the foreign supplier has not influenced the import price declared by

them. That the petitioner has alleged that the Respondents have not

submitted the price lists for the goods being imported by them. That,

the petitioner has also alleged that pricing details of goods supplied to

buyers/branches/collaborators in other countries as required to be

provided by the Respondents in accordance with the question at S.No.

29 of Annex-A of Circular 11/2001 dated 23 rd February, 2001 have not

been provided.

93. Learned ASG would submit that Circular 11/2001 dated 23 rd

February, 2001, which was issued in accordance with the earlier

Customs Valuation Rules, 1997, was superseded by Circular No.

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05/2016 dated 09th February, 2016 which was issued in accordance

with the Customs Valuation (Determination of Value of Imported

Goods) Rules, 2007. Therefore, it is no longer required to submit

pricing details of goods supplied to buyers/branches/collaborators in

other countries as per the new circular. That, as per question 5.5 of

Annex-A of Circular No. 05/2016 dated 09 th February, 2016, the

importers are required to provide copies of price list and the basis of

arriving at the invoice value only if the price of imported goods was

determined based on a price list. In the instant case, learned ASG

submits that the Respondents No. 6 and 7 have declared that their

price is based on a Transfer Price and not based on a price list and

therefore the allegation of non-submission of price list is not correct.

That therefore, prima facie, there doesn't appear to be any

misrepresentation or suppression as alleged by the Petitioner.

94. Learned ASG would submit that even if it is assumed that a price

list exists and is not submitted, it does not lay ground for the rejection

of the transaction value declared by Respondents No. 6 and 7. Learned

ASG relies upon the decision of the Hon'ble Supreme Court in the case

of Mirah Exports Pvt. Ltd. v. Collector of Customs 1998 (98) E.L.T. the

Supreme Court has held that:

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"The legal position is well settled that the burden of proving a charge of undervaluation lies upon Revenue and Revenue has to produce the necessary evidence to prove the said charge.

"Ordinarily, the Court should proceed on the basis that the apparent tenor of the agreement reflect the real state of affairs"

and what is to be examined is "whether the revenue has succeeded in showing that the apparent is not the real and that the price shown in the invoices does not reflect the true sale price." [See: Union of India Vs. Mahindra & Mahindra (supra), at p. 487 In the present case, the only evidence that was adduced by Revenue in support of the charge of under-valuation is the price list No. 8102 dated February 15, 1981 which was found during the course of search in the premises of Skefko, etc. that was conducted by the officers of the enforcement Directorate on or about June 22, 1983."

95. It is submitted that therefore, the price list of the foreign

supplier/ manufacturer is not a proof of transaction value invariably,

and existence of the price list cannot be the sole reason to reject the

transaction value. A price list is no more than a general quotation. It

does not preclude discounts, which may be granted for a variety of

reasons including stock clearance. Mere production of price list cannot

discharge the onus on the customs authorities to prove the existence of

special circumstances indicated under Section 14 of the Customs Act,

1962 read with the Customs Valuation Rules, 2007.

96. With respect to the the Petitioner's reliance upon the judgments

of the tribunal in SA Putehally v. Comm. Of Customs (2004) 178 ELT

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861 (Tri.) where the contention of the D.R.I. to value the cars based on

the "Tourist Price List" issued by the German manufacturer was upheld

and which has been confirmed in the judgment of the Hon'ble Supreme

Court in Gerson Da Cunha v. Commissioner of Customs (2015) 16 SCC

682, it is submitted by the learned ASG that the said case relied upon

by the Petitioner is distinguishable from the issue at hand as, in that

case, concrete evidence regarding the misdeclaration of the capacity of

the engine declared to be less than 1500 cc as against the actual

capacity which is greater than 1500 cc was found based on testing of

the cars, warranting the rejection of the declared transaction value.

97. Further with respect to the Petitioner's reliance upon the ratio in

A.V. Papayya Sastry v. Govt. of A.P. (2007) 4 SCC 221 to emphasize

that favorable orders fraudulently obtained by the Respondents are

non-est, void ab-initio and nullity in the eyes of the law, and the

judgments in the cases of Century Metal Recycling (P) Ltd. v. Union of

India, (2019) 6 SCC 655, Padia Sales Corpn. V. Collector of Customs,

Bombay, 1993 Supp (4) SCC 57, Sharp Business Machines (P) Ltd.,

(1991) 1 SCC 154, Habasit Lakoka Pvt. Ltd. vs. CC (Imports) - 2015

(321) E.L.T. 15 (S.C.), Mytri Enterprises vs. Commissioner -2015 (323)

ELT A71 (SC), and Varsha Plastics (P) Ltd. v. Union of India, (2009) 3

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SCC 365 to highlight the fact that valuation can be redetermined by

rejecting the declared value, it has been submitted that the petitioner

is unmindful of the fact that the question in the present petition is not

so much as to whether the declared value can be rejected or not, but

whether there are reasonable grounds to reject the transaction value

declared by Respondents No. 6 and 7 in accordance with the statutory

provisions. Learned ASG emphasizes that the Petitioner has not

provided an iota of credible and specific information to suggest that the

S.V.B orders were fraudulently obtained by Respondents No. 6 and 7.

98. It has been submitted that the Petitioner has also submitted that

the valuation of the Luxury Cars imported by Respondent No.6 and

Respondent No.7 is done based on a Transfer Pricing Order can bind

the Customs Authorities to ascertain Pricing Order obtained for the

purpose of Income Tax and no such Transfer Pricing Order can bind the

Customs Authorities to ascertain the correct value for the purpose of

levy, assessment, and collection of Customs Duty.

99. Learned ASG would submit that since the prime reason for

seeking prayers for carrying out of an investigation in the matter was

undervaluation, the study of Transfer Pricing by Income Tax confirming

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the "Arm's Length Price" can be very much relied upon. It is emphasized

that the Petitioner has not provided any specific information as to why

the transfer pricing study of the income tax authorities cannot be relied

upon. That unless there is any concrete evidence that the submissions

made by Respondents No. 6 and 7 to the Income Tax Authorities and

the SVB are contradictory, there is no reason to reject the transfer

pricing study of the Income Tax Authorities. It is further submitted that

the Transfer Pricing study by Income Tax Authorities, if it confirms the

Arm's length pricing, can be accepted for deciding the value of

imported goods in the absence of any information to the contrary. That,

no other law for the time being in force, restricts the Customs

Authorities from doing so.

100. Learned ASG reiterates that the Petitioner has not provided any

specific information that points out the flow back of funds related to

the import of cars (in addition to the invoice value). That the petitioner

has also not provided any information regarding services that are to be

offered or payments that are to be made a pre-condition for the sale of

goods and that in the absence of such Information, it is difficult to

challenge the Transaction Value declared by Respondents No. 6 and 7.

And unless the information provided pertains to the time and place of

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importation, the information cannot be taken cognizance of as held by

the Hon'ble Supreme Court in Commissioner of Customs, Ahmedabad

v/s Essar Steel Limited- 2015 (319) ELT. 202 (SC).

101. Learned ASG has concluded by submitting that therefore there is

no prima facie case to cause any investigation by the D.R.I. against

Respondent No.6 and Respondent No.7 based on the extremely generic

information provided by the Petitioner without a proper understanding

of the Customs Valuation Rules. That as there is no credible

documentary evidence and given the fact that the imports are only

provisionally assessed, it does not warrant conducting such a roving

inquiry as demanded by the Petitioner. Such an approach would erode

the confidence of the trade and would hamper the ease of doing

business in India. Further, as the imports by both Respondent No.6 and

Respondent No.7 are assessed provisionally, differential duties, if any

and on any ground, can be recovered from them at the time of final

assessment by the jurisdictional Customs Authorities. Hence, any action

or investigation by the DRI is not warranted on this ground also.

102. That all the issues pointed out by the petitioner viz. comparison

of the prices of the Luxury Cars as shown on the web in other

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countries, price of the cars sold and purchased by the related parties

from other Countries, comparison of the prices of luxury cars when

supplied by the concerned related party to the unrelated parties in

India with the prices of cars supplied to the Respondents No. 6 and 7

and Transfer Pricing having been examined, it has been found that the

information is not actionable in terms of the prevailing legal position.

103. Learned ASG submits that the Petitioner has invoked the

extraordinary jurisdiction of this Court without a clear understanding

of the Customs Valuation Rules and has also leveled various sweeping

allegations against the Respondents without furnishing any credible

documentary evidence to initiate an investigation.

104. Learned ASG submits that therefore, it is evident that the writ

petition filed by the Petitioner is totally misconceived, lacking in proper

understanding of the Customs Valuation Rules, misleading, and devoid

of any substance which appears to have been filed with an oblique

motive and that the same is liable to be dismissed with exemplary

costs.

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SUBMISSIONS OF RESPONDENTS NO.6

105. Learned Senior Counsel for Respondent No.6 submits that the

Respondent No.6 is an entity which is resultant of amalgamation of

three entities viz., (i) Volkswagen Group Sales India Pvt. Ltd. (ii)

Volkswagen India Pvt. Ltd. and (iii) Skoda Auto India Pvt. Ltd.

106. Mr. Shroff, learned Senior counsel would submit that Volkswagen

Group Sales India Pvt. Ltd has never imported Skoda cars in CKD/SKD

form.

107. That in the year 2015, when the Petitioner wrote his first letter to

the DRI and also filed Petition in the Hon'ble Supreme Court complaint

was filed only against Volkswagen Group Sales India Pvt. Ltd. and that

the 2009 SVB order is also against the said entity.

108. That, the Respondent No.6 was inter-alia engaged in the import

of cars as FBUs and sale of the cars to dealers on wholesale basis for

further sale to end customers. That the allegations of the Petitioner

relate only to imports of FBUs and not SKD/CKD as the Petitioner is

now seeking to do by his affidavit dated 19 th August, 2023 by

attempting to explain the scope of the Petition.

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109. Mr. Shroff would submit that Respondent No.6 purchases the

cars from the following Volkswagen Group entities who are related as

per Custom's Valuation Rules:

(i) Porsche cars are ordered from Porsche Middle East and Africa FZE,

Dubai since 2012. This entity deals and looks after the sales function

relating to the Middle East, Africa and India. Though the orders are

placed by Respondent No. 6 on Porsche Middle East and Africa FZE,

Dubai, the cars are shipped directly by Porsche AG, Germany to

Respondent No.6 in India. That this is clear from the invoices and other

documents; ii) Lamborghini cars ordered and shipped from Automobili

Lamborghini SpA, Italy since December 2011; and (iii) Audi cars from

Audi AG, Germany since July 2007.

110. Mr. Shroff would submit that the material relied upon by the

Petitioner is extraneous and irrelevant for the purposes of custom's

valuation and there is no suppression before the customs/SVB

authorities.

111. Mr. Shroff also submits that in 2007, section 14 of the Customs

Act was amended vide the Finance Act, 2007. The Statement of Objects

and Reasons and the Notes on Clauses, Customs, Customs Tariff, Excise

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explained the reasons for the introduction of the amendment in Section

14 of the Customs Act, 1962, where it is explained that the existing

section 14 was based on the concept of deemed value of goods.

However sub- section (1A) of section 14 mandated that the price in

respect of imported goods shall be determined in terms of the rules

made in this behalf and the rules framed thereunder are based on the

concept of 'transaction value as enshrined in the WTO Valuation

Agreement. Because of this inherent contradiction in the two concepts,

namely, 'deemed value' and 'transaction value', practical difficulties

were being faced in implementation of the valuation under the

provisions of the Act and therefore it was felt that the concept of

"deemed value" had to be substituted with the concept of "transaction

value". Accordingly section 14 was substituted with a view to provide

that the value of the imported goods and export goods shall be the

transaction value of such as determined in accordance with the rules

made in this behalf. That therefore with the amendment to section 14

of the Customs Act, 1962 in 2007 as well as with the introduction of

the Customs Valuation (Determination of Value of Imported Goods)

Rules, 2007 ("Customs Valuation Rules"), the concept of "deemed value"

no longer exists and has been replaced with the concept of "transaction

value". Thus the value of imported goods has to be the transaction

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value that is the price actually paid or payable for the goods when sold

for export to India for delivery at the time and place of importation,

with the buyer and seller of the goods are not related and the price is

the sole consideration for the same subject to other conditions. That

thus there was a sea-change from the earlier section 14 and the earlier

1988 valuation rules. Prior to 2007 the assessing officer was not

required to see the actual value or the amount actually paid or payable.

He was required to see the value not for each specific transaction but

the ordinary value in the course of international trade at the time and

place of importation.

2. The new Customs Valuation Rules inter alia, provided as under:

(i) Rule 3(3)(a) and Rule 3(3)(b) provide when transaction

value is to be accepted where the buyer and seller are related.

(ii) If the transaction value cannot be accepted, then value is

to be determined by proceeding sequentially through rules 4

to 9.

(iii) Rule 9, which is the residual method for valuation,

provides for the value to be determined using "reasonable

means consistent with the principles and general provisions"

of the Customs Valuation Rules, and expressly excludes

certain basis for determining the value. In fact Rule 9 (2)

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expressly prohibits determination of value on the basis of "the

price of the goods in the domestic market of the country of

exportation". Thus, when it is not permissible to compare the

price of goods in the domestic market of country of

exportation, it is manifestly impermissible to compare the

prices in the domestic market of other countries. In the

present case, the Petitioner has purported to compare the

price in the domestic market of other countries such as UK

and not just the wholesale price but the retail price which is

manifestly impermissible. Further, Rule 9 (2) expressly

prohibits determination of value on the basis of "the price of

the goods for the export to a country other than India".

Therefore, it is impermissible to compare prices of goods for

export to UAE. In the present case, the Petitioner has

purported to compare the price in the domestic market of

other, countries such as UK and not just the whole sale price

but retail price which is manifestly impermisible. Further Rule

9(2) expressly prohibits determination of value on the basis of

price of the goods for the export to a country other than

India. That therefore it is impermisible to compare prices of

goods for export to UAE. The Petition has purported to

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compare the price of car purchased by Porsche Middle East &

Africa FZE, Dubai for import into Dubai.

(iv) Mr. Shroff would submit that Rule 12 provides when

"proper officer" under Customs has reason to doubt the

declared import value and that as settled in Century Metal

Recycling Private Limited v Union of India 2009 (367) ELT 3

(SC)], that rejection of the transaction value has to be done

sparingly and only with evidence and a doubt to justify

detailed enquiry under the proviso to section 14 read with

Rule 12 should not be based on initial apprehension, be

imaginary or a mere perception not founded on reasonable

and 'certain' material. It should be based and predicated on

grounds and material in the form of certain reasons and not

mere ipse dixit. It is not permissible to subject imports on

mere suspicion because one is distrustful and unsure without

reasonable and certain reasons as that would be contrary to

the scheme and purpose behind the provisions which ensure

quick and expeditious clearance of imported goods.

112. Mr. Shroff would submit that comparison with the purchase price

of car purchased by Porsche Middle East and Africa FZE, Dubai, from

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Porsche AG Germany which cars are for delivery in UAE by the

Petitioner is improper. Mr. Shroff would submit that :

(i) The Petitioner has at pages 44 to 47, at paras (i), (ii), (iii) & (iv)

of Petition has referred to various Invoices and sea-way bills in respect

of import by Porsche Middle East in UAE for delivery in Dubai (the

invoices of cars imported by Porsche Middle East being at Pgs. 499 to

506 of Petition and at Pgs. 512 to 514 of Additional Affidavit of

Petitioner). These are cars admittedly "for UAE delivery" ( page 44 of

the petition).

(ii) These cars are imported by Porsche Middle East for use in the

domestic market in Dubai. These cars are not exported to India.This is

clear from the invoices and sea-way bills which have been annexed by

the Petitioner and which show supply by Porsche Germany to Porsche

Middle East, where port of departure is in Germany and port of

destination is UAE.

(iii) As the Petitioner did not provide the bills of entry along with the

corresponding invoices and certificate of origin in respect of imports

made by Respondent No. 6, Respondent No. 6 filed an Additional

affidavit dated 30 June 2023 [Pgs. 1264 to 1291] in which R.6 has

provided (i) bills of entry, (ii) corresponding invoices and (iii)

certificate of origin in respect of the imports of Porsche cars imported

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by R.6 in India as referred by the Petitioner at paras (i) to (iv) at Pgs.

45 to 47 of Petition.

(iv) The aforesaid documents produced in the Additional Affidavit

clearly show that the cars imported by Respondent No.6 in India,

though sold by Porsche Middle East to Respondent No.6 for sale in the

Indian market, are shipped by Porsche AG, Germany directly from

Bremerhaven in Germany to Respondent No.6 in India. The import of

cars in India from Germany is a distinct transaction stream from import

of cars into the UAE from Germany.

(v) Cars imported into the UAE are not further sold to/in India.

(vi) Mr. Shroff would submit that that the Petitioner has wrongly and

deliberately attempted to mislead this Court, by stating that, Porsche

Middle East has sold the Porsche cars imported into the UAE by it to

Respondent No.6 in India at prices lower than the

purchase/procurement price of said cars by Porsche Middle East from

Porsche AG, Germany; [a. Pg. 44 of Petition; b. Pg. 885 - 886 (paras 87

and 89), Pg. 893 (para 106) of Petitioner's Rejoinder; c. Pg. 94 [Para 34

(1) (vii)] of Petitioner's Rejoinder in I.A.]

(vii). Further, he has wrongly stated during oral arguments that the

said "facts are not in dispute". This is an untenable submission

considering the fact that that the issue is very much disputed by

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Respondent No. 6 in the below mentioned affidavits filed by

Respondent No.6: a.Pg. 529 - 532 (paras 36, 37 and 39), and Pg. 541

[para 57(iii)] of R.6's Reply; b. Pg. 1267 - 1269 (paras 2 to 5) R.6's

Additional Affidavit; c. Pg. 1224 (para 16) of R.6's Affidavit; d. Pg. 17

(Para 27) of R.6's Affidavit in reply to Interim Application of the

Petitioner.

(viii). The Petitioner had neither provided the said data to DRI,

including vide his letter dated 9.01.2015 at Exh A, Pg. 89 of Petition,

nor provided before the Hon'ble Supreme Court; and the said data is

being provided for the first time in the present petition before this

Hon'ble Court. As the present petition was filed premised on purported

inaction on part of DRI, the said data besides being wholly irrelevant

cannot be now relied upon as stated in Respondent No.6's Submissions

at Pg. 17 (para 27) of Respondent No.6's Affidavit in reply to Interim

Application.

(ix). Further, as the Petitioner has not disclosed the source of the data

or any particulars pertaining to purchases by Porsche Middle East,

therefore the said data cannot be relied upon, as stated by R 6 in the

following: a. Pg. 1221 (Para 12) of R.6's Affidavit filed in the context of

locus of the Petitioner; b. Pg. 1267 (Para 3) of R.6's Additional

Affidavit.

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(x). There is no Rule, or method of valuation, under the Customs

Valuation Rules which requires comparison with imports in another

country.

(xi). Rule 9 of the Customs Valuation Rules [at Pg.438 of Petition]

expressly prohibits determination of value on the basis of "the price of

the goods for the export to a country other than India".

(xii). Additionally, the import prices of cars for different countries are

not comparable for the following reasons -

a) Import prices of cars for different countries have correlation to

several country specific factors - The economic factors, such as

the demand pattern of the customers within the market, the

competitive factors and its impact on retail prices;

The nature of operations of the importer within the country;

along with the functions and risks assumed by the importing

entity, along with associated costs. Whether the importer

deploying assets, and bearing risks in relation to stock risk,

working capital risk, etc. and incurring costs in relation to

promotion and marketing costs, nature of overhead costs, etc.

The supply chain for import, distribution and retail sale adopted

within the country; and the margins and costs associated at each

leg of such supply chain, including rates of taxes and duties in

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the market.

Any specific regulatory requirements in the country requiring the

cars to be built with certain country-specific features /

configurations.

b) Even for cars of the same model, there could be various

options available. Also, basic features of the cars keep on

updating at regular intervals- therefore, there are different

generations of the same model of the car. A different generation

of car may be sold in UAE (for example, third generation Porsche

MACAN) when different generation of car may be sold in India

(second generation Porsche MACAN).

c) Different configurations, customization options/ on-top

features, extras, etc. would be available in different countries.

Porsche India offers limited customization options to Indian

customers as compared to customization options offered in

Dubai.

113. Mr. Shroff further submits that with respect to the grievance

made by the Petitioner to the purported non production of

suppliers/manufacturers price list, it is submitted that the same is

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without any basis. Learned Senior counsel submits that:

(i) In the letter dated 09 th January, 2015 issued by Petitioner to

Respondent No. 3 [at Exh A, Pg. 89 of Petition], the petition filed

before the Hon'ble Supreme Court, and in the present Petition - no

reference has been made by the Petitioner to any foreign supplier's /

manufacturer's price list in the context of imports by Respondent No.6.

Accordingly, no allegations can be made against Respondent No.6 by

reference to any purported price lists [see Pg. 535 (Paras 44 and 45)

and Pg- 540 [Para 57(v)] of Respondent No.6's Reply].

(ii) That for the first time, the Petitioner has in his Rejoinder in I.A. (L)

No. 9504 of 2023 filed before this Court on 29 th April 2023, at Pg. 81

(para 11) made reference to a document in German language (without

English translation) stated to be "Price List of June 2016 for variants of

A8 model of Audi AG, Germany from www.audi.de" [document is at

Pgs. 367 to 426 of Compilation annexed to said Rejoinder]. This it is

submitted is a sales brochure available for end-customers in Germany

to have a look at the car, its configurations and features, extras, and

the correlated price range. The sales brochure contains prices offered

/recommended at the retail sales level in Germany. In support of this, it

is submitted that as annexed to the written submission at Exhibit A, is a

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query raised on Audi Germany website which makes it abundantly clear

that this brochure is a sales brochure and the prices are retail sales.

This document has no correlation/relevance whatsoever to the import

prices of cars sold to other countries (including India) and has been

produced by the Petitioner only to mislead this Court. It is submitted

that the Petitioner has not made any attempts to make inquiries in

respect of the nature of the document, or even translated the

document, before furnishing the said document before this Court for

compelling the Court to exercise of its writ jurisdiction. That German

language document is a 2016 document and has no relevance to the

SVB Order was passed on 15 th January, 2009 against Respondent No. 6,

and therefore this document cannot be the basis for alleging any

suppression before the SVB authorities.

(iii) The import prices of Respondent No.6 are not on the basis of any

price list and therefore there was no requirement to furnish any

purported price list before SVB authorities as stated by Respondent

No.6 [ Pg. 539 (Para 56) of Respondent No.6's Reply].

(iv) As per the SVB Circulars, the importer is required to provide price

list only where the import prices are as per price list;

(v) Mr. Shroff draws the attention of this Court to -

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a) Circular 11/2001 dated 23rd February, 2001 - Pgs. 308 to 313 of

Petitioner's Rejoinder in I.A. (L) No. 9504 of 2023:

 As per Q22 of Questionnaire [Pg. 311], from the wording of the

said question itself, it is clear that there could be several different

basis for arriving at the invoice price.

 The documents listed at Pgs. 312-313 are to be given to the SVB

authorities only if those documents are relevant in the facts of

the importer's case.

 It is not the case of the SVB authorities that there was

suppression on the part of Respondent No.6. The consequences

for the importer not furnishing complete reply to the SVB

questionnaire set out at Pg. 310 (para 9).

b) Circular 5/2016 dated 09th February, 2016 - Pgs. 297 to 307 of

Petitioner's Rejoinder:

 As per Q 5.5, 5.6 and Q5.7 of the Questionnaire [Pg. 301] it is

apparent that there could be several different basis for arriving at

the invoice price, and where import price is not as per price list,

then question of furnishing any price list does not arise.

c) Petitioner has incorrectly submitted that as per Circular 11/2001 it

was mandatory to provide price list, the said Circular being applicable

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in respect of the SVB Order dated 15th January, 2009 of Respondent

No.6.

(vi) Mr. Shroff submits that it is settled law as per the Compilation of

Judgments submitted by Respondent No.6, as regards reference to

suppliers/manufacturer's price list for the purpose of Customs

valuation, following position emerges -

a) For making reference to price-list, there has to exist a

supplier's/ manufacturer's price list providing for import prices

and/ or the recommended selling prices of the importer;

b) The price lists provide general quotations which are subject to

negotiations, and which do not preclude discounts, and cannot

be the sole reason for rejecting transaction value [para 22 of the

judgement in the case of Eicher Motors - Respondent No.6's

compilation page 1].

c) Discounts on price list prices is a recognized feature of

international trade practice, which can be for variety of reasons.

In cases, discounts ranging from 40% to 76% on price list prices

has been allowed [judgements of Eicher Motors (supra), Mirah

Exports (supra), Komet Precision Tools India Pvt. Ltd.(supra)]

d) Further, to rely upon any price list, there has to be evidence

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of import at the said price list [para 8 of Mirah Exports (supra)]

e) Price lists have been referred by the Courts in the context of

section 14 of the Customs Act, prior to its amendment in 2007,

according to which -

 "the value of such goods shall be deemed to be the price at which

such or like goods are ordinarily sold, or offered for sale, for

delivery at the time and place of importation or exportation, as

the case may be, in the course of international trade,

 Section 14 (prior to, and post, amendment in 2007) is available

in the Compilation of Judgments submitted by Respondent No.6

(vii) The Petitioner's statements that each foreign supplier has price

list on the website, and that it was mandatory to submit the price list to

SVB authorities is false to his knowledge and are made to deliberately

mislead this Court.

(viii) There being a price list for dealer tools and dealer equipment

imported by Respondent No.6 from Volkswagen AG [Pg. 201 of Petition

- SVB Order of Respondent No.6] cannot be the basis to infer that there

exists price list of Audi AG for supply of cars to Respondent No.6. The

prices for dealer tools and dealer equipment are applicable to all

dealers and such tools/ equipment are not on country specific

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requirements/configurations as in the case of cars. It is submitted that

the said document is therefore wholly irrelevant.

114. With respect to comparison by the Petitioner with retail prices in

the UK, Mr. Shroff would submit that

(i) Respondent No.6 has in its pleadings pointed out that such

comparison is not legal and hence such documents and pleadings made

by the Petitioner are irrelevant [ pg. 529 to 532 (paras 36, 37 and 39 )

of Respondent No.6's Reply]

(ii) There is no Rule, or method of valuation, under the Customs

Valuation Rules which allow comparison with retail price of goods in

the domestic-market of another country.

(iii) As stated above, Rule 9 of the Customs Valuation Rules [at Pg-438

of Petition] expressly prohibits determination of value on the basis of

"the price of the goods on the domestic market of the country of

exportation".

(iv) Where the price of goods in the domestic market of the country of

exportation itself cannot be considered, then question of considering

price of goods in the domestic market of a third country (other than the

manufacturer's country and importer's country) does not arise.

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(v) That additionally, the retail price in the domestic market of another

country is not comparable for several reasons, inter alia -

a. Firstly, import prices of cars for different countries can be

different (for reasons discussed earlier);

b. Secondly, the purchase price offered to actual consumers are

significantly more than the import price paid by the importer. Imported

cars reaches the ultimate customer through supply chain comprising of

importer, dealer, etc. Each entity in the supply chain carries out certain

functions, deploys assets and bears certain risks and there are

associated costs incurred. Further, there are local taxes on sale of

goods.

115. As regards, the comparison with imports of unrelated entities,

Mr. Shroff submits that in terms of Rule 12(2)(iii)(a) and Rule 4 and

Rule 5 of the Customs Valuation Rules for comparison with imports by

unrelated entities, the following examination would be required -

a) Whether the cars being imported are comparable being

"identical goods" [Rule 2(1)(d)] or "similar goods" [Rule 2(1)

(f)].

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b) Whether the imports are at the same commercial level [Rule

4(i)(b)]

c) Whether the imports are at same quantity levels [Rule 4(i)

(b)];

d) Whether there are more than one comparable transaction, and

amongst such transactions which is the transaction at the lowest

value [Rule 4(3)].

116. The Petitioner has not produced the following import documents

of the so-called comparable imports, so that it is impossible for anyone

including Respondent No.6 to give any cogent reply as to whether they

are identical, similar, whether they are imports at the same commercial

level and the same quantity levels:

a) For the import of one Audi car referred at Pg. 50 of Petition,

import documents i.e., the bill of entry) not provided, along with

not stating the name of the unrelated importer. Examination of

bills of entry necessary to examine the import price assessed by

the Customs authorities, and for the Respondent No.6 to make

any specific submissions in this regard.

b) No Bill of entry is provided in respect of a stray import of

Lamborghini car referred at pg. 51 of Petition.

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c) Bills of entry of unrelated importers cannot be available with

Respondent No.6. [Pg: 529 - 532 (Paras 36,37 and 40), Pg. 539-

540 (paras 56-57), Pg. 542 (Para 57 (iv))].

117. Imports at different commercial levels and at different quantity

levels cannot be compared [judgments in the cases of and Hewlett

Packard Ltd. - Respondent No.6's compilation page nos. 32, 16, 36, 38,

40 and 42, respectively.]

118. It is submitted that reference by the Petitioner to import of

'Bentley' cars [Pg. 44 of Petition], cannot be the basis to allege

undervaluation of imports by Respondent No.6 of Audi, Porsche and

Lamborghini cars.

119. That the submissions made by the Petitioner in relation to - (i)

comparison of price of FBU with price of CKD imports, (ii) import of

armoured/bullet-proof vehicles by allegedly mis-declaring the

description of imports, iii) imports by unrelated entities at prices higher

than price list, etc., and any data provided by the Petitioner in this

regard related to Respondent No.5 and admittedly do not concern

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imports made by Respondent No.6 as they pertain only to import of

Mercedes cars.

120. The Petitioner vide its letter dated 09 th January, 2015 issued to

Respondent No.3 [at Exh A, Pg. 89 of Petition] given information in

relation to imports by Tata Motors Pvt. Ltd. [at Pgs. 101-102] which

information is similar in nature to the information provided in respect

of imports by Respondent No.6. However, the Petitioner has selectively

targeted Respondent No.6 and certain other importers, by making

baseless and reckless allegations.

121. Mr. Shroff would submit that relevance of transfer pricing reports

for the purpose of Customs Valuation (the Petitioner is alleged that

Transfer Pricing is irrelevant and that accepting the transfer price is not

correct). It is submitted that this is a totally erroneous submission for

the following reasons:

(i) As per Rule 3(3)(a) of Customs Valuation Rules, there is

requirement to examine circumstances surrounding the sale. [Pg.

436 of Petition]

(ii) Circular 5/2016 [at Pg. 302 of Petitioners Rejoinder

Affidavit] requires importer to submit Transfer Pricing Report

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filed before Income-tax Department, and also the Advance

Pricing Agreement.

(iii) Circular of 2001 (Common Affidavit In Rejoinder page 308

at 311, 022, where it is specifically asked as to whether the prices

are fixed on the basis of transfer price.

(iv) The import prices of R6 are transfer prices arrived on arm's

length basis - [ paragraph 88, Pg. 531, Para 38 of Respondent

No.6's Reply]. V. See paragraph 6.20 at pg. 1282 of the DRI's

latest affidavit on the relevance of transfer pricing.

122. Mr. Shroff, learned senior counsel submits that SVB is a

specialised institution dealing with imports by Respondent No.6 and

there is no suppression/fraud by Respondent No.6 before SVB

authorities. The SVB Circulars also provide for consequences if the

importer does not furnish complete reply to the SVB questionnaire or

provide the documents/ details. Mr. Shroff refers to -

(i) Circular 11/2001 - [Pg. 308 to 313 of Petitioner's Rejoinder in I.A.].

(ii) Circular 5/2016 - [Pg. 297 to 307 of Petitioner's Rejoinder in I.A.].

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123. Further in respect of imports by Respondent No. 6, the case was

registered with SVB authorities in 2007, and the SVB authorities after

carrying out detailed examination passed the SVB Order on 15.01.2009

[Pgs. 196 to 227 of the Petition].

124. That before passing the order, Respondent No.6 has furnished its

reply to questionnaire, extensive documents and details, SVB

submissions, inter alia vide-

a) Letter dated 4.10.2008 [Pg. 197-198];

b) Two letters dated 30.10.2008 furnished during personal

hearing on 31.10.2008 [Pgs. 200, 206];

c) Note dated 19.11.2008 [Pg. 206];

d) Letter dated 4.12.2008 [Pg. 209];

125. That it was not the case of Customs / SVB authorities that there

was any suppression/ mis-declaration by Respondent No.6. It is

submitted that:

(i) Suppression / mis-declaration, if any, can only be dealt with by

relevant authorities under the Customs Act by initiating proceedings as

per procedure recognized under the Customs Act and there can be no

proceedings de hors Customs Act. [Respondent No.6's pleadings at Para

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11 of Reply of Respondent No.6 to Interim Application}.

(ii) This would entail issuance of Show Cause Notice under section 28

of Customs Act by the "proper officer" designated under the Customs

Act and conducting hearing, prior to any decision/ adjudication as to

suppression / mis-declaration before the SVB authorities,

(iii) Any order passed in such adjudication proceedings would then be

subject to appeal proceedings by "aggrieved person" or relevant

Customs authorities under section 128 or section 129A of the Customs

Act.

126. It is submitted that the Petitioner is seeking to circumvent the

proceedings and procedures under the Customs Act, which should not

be permitted by the this Court in its writ jurisdiction.

127. That the material relied upon by the Petitioner is extraneous and

entirely irrelevant for the purposes of customs valuation. Therefore,

reliance placed on the said material to allege suppression / mis-

declaration / fraud by Respondent No.6 is erroneous.

128. As the SVB Order was passed on 15th January, 2009, the material

and data furnished by the Petitioner in the present Petition pertaining

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to the period subsequent to such date, cannot be the basis to state that

there was suppression / mis-declaration / fraud before SVB authorities.

129. It is submitted by Mr. Shroff that in appeal proceedings from the

SVB Order, Respondent No.6 has succeeded before the Tribunal, and

the Customs authorities have filed an appeal from the Tribunal's Order

before the Hon'ble Supreme Court which is pending before the Hon'ble

Supreme Court. [i. Pgs. 519 to 521 (para 15 and 16), Pg- 538 (para 53)

of Respondent No.6's Reply to Petition; ii. Para 9 of Reply of

Respondent No.6 to Interim Application.]

130. It is submitted that the SVB Order has attained finality in law,

subject to issues in appeal proceedings.

131. That when the appeal proceedings from the SVB Order are

pending before the Hon'ble Supreme Court, this Court should not be

called upon to set aside the SVB Order. This Court cannot be called

upon to act contrary to the statutory appellate provisions. SVB

proceedings for subsequent period are pending.

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132. The SVB Order was filed for a period of 3 years. Proceedings for

the subsequent period are pending before the SVB authorities. [i. Pg.

521 (para 16) of Respondent No.6's Reply to Petition; 11. Para 9 of

Reply of Respondent No.6 to Interim Application.]

133. Respondent No.6 has provided the relevant information to SVB

authorities and followed the procedure as laid down in Circular No.

4/2016 and Circular No. 5/2016.

134. That as required under the said circulars, the imports by

Respondent No.6 are assessed provisionally on Respondent No.6 having

furnished appropriate provisional duty.

135. That if deemed necessary, the SVB authorities can ask for further

information or details from Respondent No.6 (including on examining

the present proceedings) and Respondent No.6 would be required to

provide the same.

136. Mr. Shroff would submit that the DRI has concluded that there is

no evasion of customs duty and the premise of the present Petition as

to the inaction on the part of Respondent No.3 is belied. Mr. Shroff

would submit that:

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a) As per Hon'ble Supreme Court's Order dated 15.07.2016

Respondent No.3 was to take appropriate action as advised in

law only if the Respondent No.3 was convinced that the

information given by the Petitioner was credible information.

[Exh F at Pg. 413 of Petition].

b) The Petitioner filed the present Petition premised on purported

inaction on the part of Respondent No.3 - [prayer(a), (b) and (c)

at pgs. 79 and 80 of Petition.]

c) Respondent No.3 has concluded that there is no case of

evasion of Customs duties based on information provided by the

Petitioner:

i. Respondent No.3 has as regards Petitioner's letter dated

9.1.2015 [Exh A at Pg. 89 of the Petition] stated that the

Petitioner had not provided any concrete or prima facie evidence

in support of his allegations, and that there was no credible

evidence [ Pg. 1236 (paras 4 and 5) of Reply of Respondent

No.3].

ii. Vide letters dated 9.9.2016 [Exh B at Pg. 105 of Petition] and

25.11.2016 [Exh C at Pg. 114 of Petition] filed subsequent to the

Hon'ble Supreme Court's Order dated 15.07.2016, no

information and material furnished by Petitioner pertaining to

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Respondent No.6 but only as regards Respondent No.5.

iii. As admitted by the Petitioner [at Pg. 17 (para 13) of the

Petition] - If information regarding Respondent No.5 (Mercedes)

would have been found credible and investigation would show

that information recorded would result in detention and recovery

of duty; then recording separate DRI-1 statement for

investigation into other importers was to be considered.

iv. Detailed investigation conducted against Respondent No. 5

[Pgs. 691 to 696 (para 8) of Reply of Respondent No. 5]

v. Thorough investigation conducted and concluded by

Respondent No.3 [at Pgs. 1240 and 1241 (paras 10 and 12) of

Reply of Respondent No.3].

d) The Petitioner's statement that Respondent No.3 has not

investigated imports of Respondent No.6, is belied, when on

Respondent No.3 carrying out thorough investigation it was

found that the information being furnished by the Petitioner is

not credible.

e) Mr. Shroff would submit that further, in view of

investigation by the DRI of Respondent No.6's imports [refer, Pg.

516 (para 9) of Respondent No.6's Reply] the Petitioner's

statement is incorrect and misleading.

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f) Mr. Shroff would submit that statedly the premise of the

Petition as to alleged inaction on part of Respondent No. 3 based

on data provided by Petitioner, stands belied. That the stated

premise of the Petition being the alleged inaction on the part of

the Respondent No. 3 is also noted by the Hon'ble Supreme Court

in its Order dated 29th March 2023 in disposing of the Special

Leave Petitions No. 6609-6610 / 2023.

g) It is submitted that subsequent to Hon'ble Supreme Court's

Order dated 29th March 2023, the Petitioner has by seeking

additional prayer [prayer (a1) at Pg. 79] sought to

fundamentally change the nature and character of the

proceedings by way of expanding the reliefs sought by

challenging the SVB Orders.

137. Mr. Shroff would submit that after several hearings, this Court

directed the DRI to reconsider the evidence produced by the Petitioner

not only prior to the filing of the petition but even during the pendency

of the petition and permitted the Petitioner to even file further

documents for consideration by the DRI. After considering all the

documents, the DRI has filed its latest affidavit in which they have

stated that there is no material or evidence produced by the Petitioner

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which even remotely suggests that there was any under valuation with

regard to the imports made by the various Respondent importers.

138. Mr. Shroff therefore submits that this Court cannot be called

upon to enter into disputed question of facts in the writ jurisdiction.

139. Learned Senior Counsel submits that the Petition requires this

Court to enter into a detailed enquiry and investigation into the

disputed questions of facts in its writ jurisdiction, at the behest of the

Petitioner who has raised reckless and baseless allegations, to decide

on-

(i) whether the data provided by the Petitioner is relevant under

Customs law for determining the assessable value of imports by

Respondent No.6,

(ii) whether there was any suppression or fraud by the Respondent

No.6 before the SVB authorities which should not be permitted.

140. Mr. Shroff, learned senior counsel for the Respondent No.6 urges

this Court that the conduct of the Petitioner should dis-entitle him from

any reliefs from this Court.

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141. Petitioner's role, if at all, can be that of an informant, and should

have been confined to furnishing of the information to Respondent

No.3.

(i) This is also as per Hon'ble Supreme Court's Order dated 15 th July,

2016 [Exh F@ Pg. 413].

142. The Petitioner has been unduly seeking to compel the conduct

and conclusion of investigation by statutory authorities (Respondent

No.3) as per Petitioner's agenda - (i) by making reckless and baseless

allegations based on irrelevant material and truthful statements, (ii) by

bringing frivolous proceedings before different Courts, and (iii) for

improper motives.

143. These proceedings have been initiated for personal gains - by

way of monetary reward. This is clear from the following :

(i) Exh A at page 89

(ii) Pgs. 136, 170, 189 and 193 of the Petition - proceedings before

Hon'ble Supreme Court.

(iii) Circular 20/ 2015 - Guidelines for grant of reward at Pgs.348 to

362.

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(iv) Pg. 1173 [Para 5(ff)] of Additional Affidavit of Petitioner.

(v) Pg.1230 (Para 24) of Additional Reply of Respondent No.6.

144. Past proceedings against Petitioner :

(i) Pg 15 (para 10) of the Petition.

(ii) Pg 370 of Petition - Counter Affidavit before the Hon'ble

Supreme Court.

(iii) Pg. 1252 (para 29) of Reply of Respondent No.3 - arrested for

smuggling activities and detailed under COFEPOSA Act

(iv) Pg. 1180 (para 5) of Additional Reply of Respondent No.3 - This

information was not provided by the Petitioner at the time of

filing the Petition and in its Affidavit to establish bona fides.

145. The Petitioner has not disclosed source of information/ details

which are proprietary in nature (clause (m) of the Petitioner's affidavit

on locus dated 1st December 2022, page 1165). It is beyond

comprehension as to how in his role as an advocate he obtained this

proprietary confidential information:

(i) Pg. 1221 (para 12) of Additional Reply of Respondent No. 6

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146. Petitioner had concealed material facts:

(i) Petitioner did not disclose three letters (dated 27 th May, 2019, 10th

July, 2019 & 19th August, 2019) issued by Respondent No.3 requesting

for information and that Petitioner has not responded to these letters

a) Pg.1221(para 12) of Additional Reply of Respondent No.6

b) Pg. 696 (paras 11 and 12) of Reply of Respondent No.5

c) Pg. 848 (para 15) of Petitioner's Rejoinder.

(ii) Petitioner had not made efforts / attempts to find out relevant facts

- re status of investigation by Respondent No.3 after providing

information in 2016, before filing the present Petition in February

2022.

147. Petitioner has been approaching different forums (Forum

Shopping) by bringing frivolous proceedings before different Courts.

Pursuant to Hon'ble Supreme Court's Order of 15.07.2016, by relying

upon the material submitted by Petitioner with Respondent No.3, on 24

August 2020 Civil Writ Petition (PIL) No. 9425 of 2020 was filed before

the Rajasthan High Court;

(i) Petitioner herein was made Respondent no. 5 in the petition

before Rajasthan High Court; [at Pg. 589 of Reply of Respondent No.3]

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(ii) Affidavit in Reply filed by Respondent No.3 before Rajasthan

High Court on 25th November 2020. [at Pg. 642 of Reply of Respondent

No.3]

148. Lastly Mr. Shroff submits that the Petition suffers from inordinate

delay and laches and deserves to be dismissed. Learned senior counsel

submits that subsequent to the Petitioner furnishing of information and

Petitioner's visits to Respondent No.3, all in 2015 and 2016, there has

been inordinate delay of more than 5 (five) years with the present

Petition having been filed in January 2022, and no explanation

whatsoever provided by the Petitioner in the Petition for the

interregnum period. That the Petitioner had furnished information to

Respondent No.3 stated to be relevant as to Respondent No.6's imports

only in January 2015 (i.e., letter dated 09 th January, 2015 [Exh. A at

Pg.89] and the present Petition filed in January 2022 has been filed

after an unexplained delay of 7 (seven) years.

149. In reply to the Petitioner's oral arguments Mr. Shroff has also

made additional submissions on behalf of the Respondent No.6 as

under :

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a) The Respondent no. 6 (Skoda Auto Volkswagen India Pvt. Ltd.) is

filing these Additional Submissions with the permission of this Court,

specifically in reply to the oral arguments made by the Petitioner on 5 th

July 2024. The Additional Submissions are in addition to the synopsis

of submissions ("Written Submissions") submitted on behalf of

Respondent No.6 on 8th April 2024.

b) The Petitioner has wrongly stated that the same Porsche cars

imported into UAE by Porsche Middle East & Africa FZE, Dubai

("Porsche Middle East") are sold by Porsche Middle East to Respondent

No.6 in India. In this regard, it is submitted as follows -

i. Respondent No.6 has furnished the bills of entry, corresponding

invoices and certificate of origin in respect of Porsche cars imported by

Respondent No.6 in India, as were referred in the Petition in paras (i)

to (iv) at pgs. 45 to 47. [Pgs. 1271 to 1289 of the Additional affidavit

of Respondent No.6]. From the said documents on record, it s evident

that the Porsche cars imported by Respondent No.6 in India are

shipped/ exported by Porsche AG Germany directly from Bremerhaven

in Germany to Respondent No.6 in Mumbai, India.

ii. Porsche cars relevant for Indian market which are sold by Porsche

Middle Bast to Respondent No.6 for sale in India are shipped directly

by Porsche AG Germany from Bremerhaven in Germany to Respondent

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No.6 in India. The import of cars in India from Germany is a distinct

transaction stream from import of Porsche cars into UAE.

iii. The documents furnished by the Petitioner in the Petition [at Pgs.

499 to 506 of the Petition] do not in any manner indicate that Porsche

cars imported into UAE are sold to Respondent No.6 in India. Further,

the Petitioner itself has stated that the said imports in UAE are "for UAE

delivery" [at para (i) at Pg. 44 of the Petition, para 89 at Pg. 886

Petitioner's rejoinder]

iv. For various reasons the import prices of cars imported in UAE are

not comparable to cars imported in India. [para C (x) to (xii) of

Respondent No.6's Written Submissions].

c. The Petitioner's submission that DRI, Bangalore Zonal Unit, has

not filed its submissions and its affidavit in the present proceedings, is

of no relevance for the following reasons -

i. The Petitioner had submitted its letter dated 09 th January, 2015 [Exh

A at Pg. 89 of Petition] to the Additional Director, DRI, Mumbai. In the

Writ Petition (Cri.) No. 20 of 2016 filed before the Hon'ble Supreme

Court, the Additional Director, DRI, Mumbai was Respondent no. 3 [at

Pg. 145 of the Petition], and the Hon'ble Supreme Court had vide its

Order dated 15th July 2016 [Exh F at Pg. 413-414 of the Petition] stated

- "If the Additional Director, DRI, Mumbai Zone is convinced that there

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is credible information given by the Petitioner, he shall take appropriate

action, as advised in law."

ii. Further, the Petitioner had submitted its letters dated 9.9.2016 [Exh

B at Pg. 105 of the Petition] and 25.11.2016 [Exh C at Pg. 114 of the

Petition] to the Additional Director, DRI, Mumbai Zonal Unit.

iii. The Petitioner has, on the basis of the Hon'ble Supreme Court's said

order, and the above-referred communication with the DRI, Mumbai

Zonal Unit, premised the present Petition on the alleged inaction on the

part of the Respondent no. 3, i.e., the DRI.

iv. Where the Respondent no. 3 has, on examination of the material

furnished by the Petitioner, in its Reply [at para 5, Pg. 1236. Reply of

Respondent No.3] stated that the Petitioner "did not provide any

concrete or prima facie evidence in support of his allegations of

undervaluation", and in its Additional Affidavit in Reply [at Pgs. 1283

and 1284 of Respondent No.3's Additional Affidavit in Reply] stated the

material to be "extremely generic information provided by the

Petitioner without a proper understanding of the Customs Valuation

Rules", and as the Bangalore Zonal Unit is only a sub-ordinate unit of

Respondent no. 3 (i.e., the DRI), the Petitioner's submissions that the

DRI, Bangalore Zonal Unit has not filed any separate affidavit, is of no

relevance.

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d. The Tribunal's decision in S.A. Futehally v. Commissioner of Customs

[at Pg. 104 to 115 of Petitioner's compilation of cases] is

distinguishable, and not relevant, inter alia for the following reasons -

i. In that case, it would appear that imports were made by end-

customers, and the appellant (S. U. Futehally) facilitated the imports by

the said customers [refer paras 2, 3 and 4 of the decision]. The price-

lists referred to in that case would relate to imports/ purchase by end

customers. Whereas, in the present facts, Respondent No.6 imports the

cars which are subsequently sold to dealers on wholesale basis for

further sale to end customers.

ii. In that case the imports were made during 1987-89 from Volkswagen

Germany. It is submitted that the availability of price lists referred in

respect of imports in 1987-89, cannot be the basis to assume existence

of price-lists for exports to India after a period of more than 20 years

(SVB Order was passed on 15th January, 2009) when exports to India

were under a distinct transaction structure.

iii. From the record of the present case including material furnished by

the Petitioner), there is no reference to manufacturer's price list

available for export to India during the relevant period.

iv. Further, relevance of price-lists is limited to the period prior to the

amendment in section 14 of the Customs Act in 2007 as the said

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section (prior to the amendment) provided that the value of goods shall

be "deemed to be the price at which such or like goods are ordinarily

sold, or offered for sale,. in the course of international trade." Whereas,

post-amendment, as per section 14 the value is to be the transaction

value i.e., the price actually paid or payable for goods exported to

India.

v. The facts of that case are also distinguishable as in that case there

was evidence regarding misdeclaration of engine capacity of imported

cars, and in relation to part payments of imports made by an entity in

Japan [refer para 2 at Pg. 106 of Petitioner's compilation of cases]

vi. Submissions as regards relevance of price-lists in the present context

are at para 4 of Respondent No.6's Written Submission.

e. The Petitioner's submissions that the SVB authorities have not

examined the pricing pattern of the imports by Respondent No.6 stands

belied on perusal of para 5.1 and 5.2 of the SVB Order whereas the

sales pattern and price pattern are examined. [Pgs. 206 to 208 of the

Petition]

f. The Hon'ble Supreme Court's decision in Varsha Plastics Pvt. Ltd. v.

Union of India [Pgs. 81 to 91 of the Petitioner's compilation of cases]

which was referred by the Petitioner to support reference to foreign

journals, is clearly distinguishable as in the said case the imports were

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made in July 2000, and the scope of section 14 of the Customs Act

prior to its amendment in 2007 was examined [Refer paras 2, 15, 19,

20, 35 and 37 of said decision]. In 2007, section 14 of the Customs Act

was amended and there was a sea-change from the earlier section 14

with the concept of "deemed value" replaced by the concept of

"transaction value". Prior to the amendment the ordinary value in the

course of international trade was to be seen, whereas, post-amendment

the transaction value i.e., price actually paid or payable for the specific

transaction) was to be considered. [Refer submissions at para B (1) of

Respondent No.6's Written Submissions; Section 14 of the Customs Act

is at Pgs. 56 to 58 of Respondent No.6's Compilation of judgments].

SUBMISSIONS OF RESPONDENTS NO.7

150. Adopting Mr. Shroff's argument, Mr.Prasad Paranjape, learned

Counsel for the Respondent No. 7 reiterates all that has been stated in

the Affidavit in reply dated 08th April 2022 (page nos. 763-803) and

Additional Affidavits both dated 25th April 2023.

151. Mr. Paranjape, learned Counsel for the Respondent No.7 has

further submitted that Respondent No. 7 has correctly followed the

customs laws with respect to valuation of goods imported by it.

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152. With respect to para 29 (page no. 33) of the Petition where the

Petitioner has enclosed Exhibit G to the Petition (page no. 415 to the

Petition) seeking to compare prices declared by Respondent No. 7

before the Indian Customs Authorities vis-à-vis, list price in Germany

and UK, it is submitted by Mr.Paranjape that this is dealt in Respondent

No. 7's Affidavit in reply dated 08 th April 2022 at para 57 (page no.

791) where Respondent No. 7 has submitted that such a comparison is

meaningless because what is being compared in column 9 and 10 and

column 12 and 13 of the table at page 415, is declared assessable value

and purported list price in Germany and UK. It is submitted that the list

price which is meant for ultimate customers and that to in different

geographies such as Germany and UK, cannot be compared with the

Customs Assessable Value in India as the assessable value will get

added with customs duties, various taxes, expenses, over-heads,

margins in India, which may become the basis to arrive at the list price

in a country of ultimate sale. Therefore, comparing list price and

assessable value that too in two different countries is like comparing

chalk to cheese.

153. Further it is submitted by Mr. Paranjape that at para 32 at page

33 of the Petition, where the Petitioner has enclosed a few invoices

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issued by the overseas BMW entity for delivery in UAE. That these

supplies are made by the overseas entity to certain customer in UAE. It

is submitted that the Petitioner does not draw any analysis as to what

exactly his case or contention is, by enclosing such invoices. In any

case, it is submitted that the sale by overseas BMW entity to a customer

in UAE which is a different geography cannot be compared. Entity in

every country will have its laws to be followed and other commercial

parameters to be applied such as quantity of offtake, model number,

year of sale or features of the car.

154. With respect to para (p)(i) at page no. 52 of the Petition, where

the table seeks to compare assessable values in India with the FOB

price of Right-Hand Drive (RHD) vehicle published on the website,

purportedly applicable in the UK, it is submitted that the same is dealt

with by the Respondent No. 7 in para 65 at page no. 794 in the

Affidavit in reply dated 08th April 2022. That the assessable value

cannot be compared with the FOB price or list price, which is meant for

the ultimate customer, that too in a different geography and further

evidently of a model with a different configuration i.e. RHD. It is

further submitted that the difference between the assessable value and

the final list price published on the website meant for the ultimate

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buyer will comprise of various elements such as duties, taxes, expenses,

margins, overheads, and therefore again such a comparison is as good

as comparing apples with oranges.

155. With respect to para (ii) at page 54 of the Petition, which seeks

to compare the values declared in the two Bills of Entry, it is submitted

that the same is dealt with by the Respondent No. 7 in para 66 at page

no. 795 in the Affidavit in reply dated 08 th April 2022. The value

declared in the Bill of Entry No. 8750215 is where Respondent No. 7

has imported themselves for subsequent sale through dealer network.

Whereas the Bill of Entry No. 8863665, the goods were sold on high

seas basis and the Bill of Entry was filed by the importer in India. It is

submitted that in the high sea sale transaction, the Bill of Entry is filed

by the Purchaser in India which would include margin of Respondent

No.7 justifying the difference in price between the two transactions.

This again demonstrates how the Petitioner has been comparing with

incomparable.

156. Mr. Paranjape seeks to draw attention of this Court to para EE at

page no. 73 of the Petition where certain aspersions have been cast

upon, inter alia, upon Respondent No.7 with respect to the alleged

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proceedings under the Acts other than the Customs Act. Mr. Paranjape

submits that this appears to tarnish the image of Respondent No.7 and

is highly deprecated. That this appears to be a feeble attempt to create

a prejudice against Respondent No.7. It is submitted that at para 5 at

page no. 1179 of the Affidavit in Reply of the DRI dated 21 st December

2022, the DRI has stated instances in which the Petitioner was

proceeded against and that too, inter alia, under the Customs Act. With

regard to such antecedents of the Petitioner, it is submitted that it is

incorrect on the part of the Petitioner to cast aspersions on Respondent

No.7 presumably to misdirect this Court into an area that is not

relevant for the purpose of this Petition and this itself creates doubts

about the bona fide of the present Petition.

157. Without prejudice to above Mr. Paranjape submits that in any

event, presently the assessment of the Bills of Entry filed by the

Respondent No. 7 are provisional and therefore, the allegation made by

the Petitioner that there is undervaluation is anyway premature as the

proper officer has not even applied his mind.

158. Learned Counsel for Respondent No.7 accordingly submits that

this Court dismiss the Petition with exemplary costs.

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159. The Respondents including Learned ASG have submitted that the

Petitioner has not provided any credible and specific information to

suggest that the S.V.B orders were fraudulently obtained by

Respondents No. 6 and 7. In any event it is stated that the Department

is in appeal against the said orders which appeal is pending and that

for some of the subsequent years, the S.V.B. orders are pending.

160. In response to the Petitioner's submission that the valuation of

the Luxury Cars imported by Respondent No.6 and Respondent No.7 is

done based on a Transfer Pricing Order can bind the Customs

Authorities to ascertain Pricing Order obtained for the purpose of

Income Tax and no such Transfer Pricing Order can bind the Customs

Authorities to ascertain the correct value for the purpose of levy,

assessment, and collection of Customs Duty, it has been submitted that

since the prime reason for seeking prayers for carrying out of an

investigation in the matter was undervaluation, the study of Transfer

Pricing by Income Tax confirming the "Arm's Length Price" can be very

much relied upon. It has been emphasized that the Petitioner has not

provided any specific information as to why the transfer pricing study

of the income tax authorities cannot be relied upon. That unless there

is any concrete evidence that the submissions made by Respondents

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No. 6 and 7 to the Income Tax Authorities and the SVB are

contradictory, there is no reason to reject the transfer pricing study of

the Income Tax Authorities. It is further submitted that the Transfer

Pricing study by Income Tax Authorities, if it confirms the Arm's length

pricing, can be accepted for deciding the value of imported goods in the

absence of any information to the contrary. That, no other law for the

time being in force, restricts the Customs Authorities from doing so.

161. It has been reiterated on behalf of the Respondents that the

Petitioner has not provided any specific information that points out the

flow back of funds related to the import of cars (in addition to the

invoice value). That the Petitioner has also not provided any

information regarding services that are to be offered or payments that

are to be made a pre-condition for the sale of goods and that in the

absence of such Information, it is difficult to challenge the Transaction

Value declared by Respondents No. 6 and 7. And unless the

information provided pertains to the time and place of importation, the

information cannot be taken cognizance of as held by the Hon'ble

Supreme Court in Commissioner of Customs, Ahmedabad v/s Essar

Steel Limited- 2015 (319) ELT. 202 (SC).

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162. Learned ASG has concluded by submitting that therefore there is

no prima facie case to cause any investigation by the DRI against

Respondents No.6 and Respondent No.7 based on the extremely

generic information provided by the Petitioner without a proper

understanding of the Customs Valuation Rules. That as there is no

credible documentary evidence and given the fact that the imports are

only provisionally assessed, it does not warrant conducting such a

roving inquiry as demanded by the Petitioner. Such an approach would

erode the confidence of the trade and would hamper the ease of doing

business in India. Further, as the imports by both Respondents No.6

and Respondent No.7 are assessed provisionally, differential duties, if

any and on any ground, can be recovered from them at the time of final

assessment by the jurisdictional Customs Authorities. Hence, any action

or investigation by the DRI is not warranted on this ground also.

163. Further, it has been submitted by the Learned ASG on behalf of

the Respondent authorities that all the issues pointed out by the

Petitioner viz. comparison of the prices of the Luxury Cars as shown on

the web in other countries, price of the cars sold and purchased by the

related parties from other Countries, comparison of the prices of luxury

cars when supplied by the concerned related party to the unrelated

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parties in India with the prices of cars supplied to the Respondents No.

6 and 7 and Transfer Pricing having been examined, it has been found

that the information is not actionable in terms of the prevailing legal

position.

164. We do not find any material which prima facie suggests that the

said Respondent has not cooperated with the investigation and/or

interfered with the same or the decision making process or that there

has been any suppression or a mis-declaration or undervaluation or any

collusion or connivance. The allegations levelled by the Petitioner

against the Respondent authorities appear to be unfounded.

165. The Petitioner has also approached this Court without availing of

alternate remedy by filing appropriate proceedings before an

appropriate forum of the Respondents No. 1 to 3.

166. It has also been submitted that therefore the aforesaid Petition is

not maintainable, is totally misconceived, misleading and devoid of

substance, and has been filed with an oblique motive, hence, same is

liable to be rejected/dismissed with exemplary costs.

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SUMMARY OF SUBMISSIONS

Antecedents and Bonafides

167. The above submissions can be summarized as under:

(i) The Respondents have raised a grievance that the Petitioner is

not acting in a bona fide manner and has personal gain or private

motive or political motivation or other oblique considerations in mind

and therefore this Court may dismiss the petition with exemplary costs.

(ii) The Petitioner, as Director of Sprint Services Private Limited was

involved in a case of breach of Customs Notification No.49 of 2000

dated 27th April, 2000, by importing cars under Export Promotion

Capital Goods (EPCG), Scheme which was allowed subject to the

"Actual User" condition as well as condition of fulfillment of export

obligation by use of the said imported goods, having disposed of the

imported cars in the open market and created documents to show

apparent compliance with the conditions of the license. That the

Petitioner was arrested on 29 th June, 2001 during the course of

investigation in the case involving 20 cars. After a thorough

investigation, the DRI issued two Show Cause cum Demand Notices

bearing No.- (i) 27/XI/29/2001-CI dated 31 st May, 2002 for 20 cars,

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and (ii) DRI/BZU/C/2001 dated 03rd June, 2002 for 5 cars, demanding

differential Customs Duty of Rs.2,93,61,300/- and Rs.62,58,173/-

respectively and a Show Cause Notice was issued to the Petitioner by

the DRI, Delhi Zone Unit under Section 124 of the Customs Act,

regarding confiscation of 6 cars lying uncleared at ICD Ludhiana,

wherein the declared assessable value of the cars were found to be

grossly understated. On receipt of Show Cause cum Demand Notice as

mentioned Sr.No.(ii) above, Petitioner approached the Additional

Bench of the Settlement Commission, Mumbai and admitted that he

had committed breach of the EPCG License and Customs Notification

No.49 of 2000 dated 27th April, 2000 and, was willing to pay customs

duty liability as demanded after which the final order dated 10 th April,

2003 was passed by the Settlement Commission, holding that the

action of the Petitioner was incorrect as per law and the Petitioner, paid

the full amount of differential customs duty along with interest

whereby immunity was granted to the Petitioner from fine, penalty,

prosecution.

(iii) The present Petition has been filed despite having knowledge of

the fact that a similar issue is already pending before the Rajasthan

High Court for its decision in Civil Writ Petition (PIL) No. 9425 of 2020

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raising similar issues which was filed by one Arvind Alaru vs Union of

India & Ors. before the High Court of Rajasthan, wherein the Petitioner

being the informant was made a favouring/friendly Respondent i.e.

Respondent No. 5 in the Petition. Hearing in the said case has already

taken place and the answering Respondent was directed vide order

dated 03rd September, 2020 to indicate the actions taken based on the

directions given by the Hon'ble Supreme Court in Criminal Writ Petition

No.20 of 2016 filed by the Petitioner. DRI filed its reply before the

Rajasthan High Court on 25 th November, 2020 and although statedly

the next hearing in the Petition was due on 13 th May, 2022, no further

update is available.

(iv) That before the Hon'ble Supreme Court, the Petitioner had

submitted that his intention behind challenging the valuation was to

get reward as per the guidelines laid down under Circular No.

20/2015-Cus dated 31st July, 2015.

Allegations against Respondent authorities and their response

(v) The Petitioner has levelled various allegations against officers of

DRI without furnishing any prima facie material/proof/evidence in

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support thereof including by letter dated 9 th January, 2015, that

Respondents No.5, 6 and 7 were resorting to fraud, mis-representation

and suppression of facts (under valuation) in import of luxury cars into

India from related parties to dupe the Central Government of its

legitimate customs duties.

(vi)The Respondent Authorities have submitted that the Petitioner

cannot be allowed to seek any prayer under Article 226 of the

Constitution to settle purported personal scores or to achieve any

personal gain in the garb of filing this Petition.

(vii) That the Petitioner has solely placed reliance upon the information

given by him to DRI in furtherance of contents of the Writ Petition

(Criminal) No. 20 of 2016 filed by the Petitioner before the Hon'ble

Supreme Court. That the Hon'ble Supreme Court disposed of the Writ

Petition (Criminal) No. 20 of 2016 vide Order dated 15 th July, 2016. In

Order dated 15th July, 2016, the Hon'ble Supreme Court directed the

Petitioner to file relevant documents before Additional Director, DRI in

support of his claim.

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(viii) After about three months, the papers submitted by the Petitioner

were returned with advice to approach the DRI with credible evidence

of the alleged fraud and under-valuation.

(ix) In the Criminal Writ Petition No.20 of 2016 filed by the Petitioner

on 28th January, 2016, before the Hon'ble Supreme Court of India, a

detailed affidavit dated 17th March, 2016, was filed by the DRI

furnishing details, circumstances and reasons for not recording DRI-1

on the information provided by the Petitioner and after hearing both

the sides the Hon'ble Supreme Court disposed of the said Petition vide

order dated 15th July, 2016 by passing the following order. The relevant

paragraphs are as under :

"Having heard learned counsel for the parties, we are of the considered opinion that the writ petition can be disposed of at this stage by permitting the petitioner to file documents before Additional Director, Directorate of Revenue Intelligence (DRI), Mumbai within eight weeks hence. Thereafter, the said authority shall intimate the petitioner so that the petitioner can appear and explain and answer the queries of the authorities. As further agreed to by learned Counsel for the parties, the petitioner shall also cooperate as Mr. Nanda would emphatically put forth that the petitioner has filed this writ petition for the national cause. If the Additional Director, DRI, Mumbai Zone is convinced that there is credible information given by the petitioner, he shall take appropriate action, as advised in law. The writ petition is accordingly disposed of. There shall be no order as to costs."

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(x) By letter dated 9th September, 2016, the Petitioner submitted

certain information along with annexures to the DRI requesting for

expeditious preliminary enquiry for considering registration of

Information Report/DRI-1 and commencing investigation into alleged

cognizable offences punishable under the Customs Act for the alleged

evasion of customs duties in the import of luxury cars whether as FBUs

or in CKD/SKD form when imported from related parties.

(xi) The information furnished in the letters was general in nature

containing sweeping allegations against five corporate houses, which

was examined by the DRI.

(xii) Since the Petitioner had expressed desire that he would like to

place further material on record to assist the investigation, Petitioner

was invited to attend the office of the DRI and the Petitioner thereafter

visited the office on 4th October, 2016. The information was discussed

at length with him and that the Petitioner informed the officers

thereafter that he had no additional material and would require some

more time to do so.

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Respondent No. 5

(xiii) Thereafter, on 16th November, 2016, the Petitioner once again

visited the DRI office and expressed his desire to meet the Additional

Director and the other officers of DRI and stated that he had specific

details of import of certain consignments of Respondent No.5 viz.

Mercedes - Benz India Pvt. Ltd. suspected to be imported fraudulently

and that he was in the process of gathering specific details about the

consignments of the remaining four importers mentioned in his letter

dated 9th September, 2018. The Petitioner agreed to furnish the details

of specific consignments imported by Respondent No.5 for which DRI-

1 would be recorded and an enquiry would be initiated by DRI,

Mumbai.

(xiv) By letter dated 25th November, 2016, the Petitioner furnished

details of a few consignments imported by Respondent No.5 and

alleged mis-declaration of description and/or value and also visited DRI

office on 29th November, 2016 and once again requested that the

information in respect of the said information furnished by letter dated

25th November, 2016, DRI-1, may be recorded and an enquiry be

initiated against the Respondent No.5.

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(xv) DRI-1 was recorded on 7 th December, 2016, regarding the alleged

fraudulent imports by Respondent No.5.

(xvi) Statedly a thorough investigation was conducted by the DRI

under the supervision of Additional Director General, in compliance of

the Order of the Hon'ble Supreme Court dated 15 th July, 2016 and that

despite a detailed investigation, no case of evasion on duty of

importation of luxury cars on under-stated values by Respondent No.5

could be made out.

(xvii) Thereafter, by three separate letters dated 27 th May, 2019, 10th

July, 2019 and 19th August, 2019, the Petitioner was requested to

furnish additional information / documents (if any) in his possession to

substantiate the charges of undervaluation, however statedly the

Petitioner failed to respond to any of the aforesaid letters.

(xviii) After examining all documents, records and the relevant legal

provisions and pronouncements, the investigation against Respondent

No.5 was closed on 16th September, 2020 after a period of almost four

years of investigation. The investigation was supervised at various

times by two Deputy Directors, Four Additional/Joint Directors and

Two Principal Additional Directors General.

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(xix) On behalf of Respondent No.5 it has been submitted that the

Petition is hit by delay and laches. The Petitioner did not participate in

investigation after 2016. That the DRI closed the investigation

proceedings in 2020 after finding no evidence of undervaluation. The

Petitioner approached this Court in 2022 i.e. 2 years after closure of

investigation and after almost 6 years of disposal of its case raising

similar grievance before the Hon'ble Supreme Court.

(xx) And therefore the allegation of inaction by DRI is incorrect. The

Respondent No. 5 has made elaborate submissions in this regard in its

Affidavit-in-reply dated 21st April, 2023 wherein they have stated that a

detailed investigation was conducted.

(xxi) Orders passed under Section 92CA(3) of the Income Tax Act,

1961 by the Income Tax (Transfer Pricing) authorities Pune in respect

of Respondent No. 5 for AY 2015-16 and AY 2014-15 have been

scrutinized and the Income Tax authorities have not disturbed the

"Arm's Length Price" of transactions as reported by Respondent No.5.

(xxii) As per the Respondent authorities, scrutiny of the Financial

statements of Respondent No.5 for the past years does not indicate any

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remittance / transfer of funds to Daimler AG (related to import of

cars), over and above the Import invoice value and that all the

Agreements entered between Daimler AG and Respondent No.5, have

been scrutinized thoroughly and no provision relating to any flow back

of fund from Respondent No.5, Pune to Daimler AG, Germany (other

than towards the Invoice Value of the cars) or any other consideration

for the foreign supplier relatable to import of cars was noticed. That the

scrutiny of the Agreements (between Daimler AG and Respondent

No.5, Pune) and the Financial Statements of Respondent no. 5, Pune by

the authorities indicate that there are several Agreements viz.

Agreement for Assistance, Long Term Consultancy Agreement etc. by

which various services like IT, Financing, Planning, Legal, Insurance

etc. are provided by Respondent No.5 to Daimler AG, Germany for

which amounts are being remitted by Daimler AG, Germany to

Respondent No.5 and that thus, the flow of money under these

Agreements is two ways-from Daimler AG, Germany to Respondent

No.5 and vice versa supporting the fact that the transactions between

them are at arm's length. It has been submitted that after examining all

the above documents and relevant legal provisions, the Investigation

against Respondent No.5, Pune was closed.

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(xxiii) Statedly, files/records pertaining to Respondent No.5 available

in the Special Valuation Branch (SVB), New Custom House, Mumbai

were called for and examined and it was noticed that from the year

2005 till 2020, Special Valuation Branch, New Custom House, Mumbai

has passed five Orders for five different periods after detailed scrutiny

of the relevant documents of the importer viz. Respondent No.5

pertaining to transaction value and that vide each of the above Orders,

the declared invoice value has been accepted as the Transaction value

in terms of Section 14 of the said Act, read with the Customs Valuation

(Determination of Value of Imported Goods) Rules, 2007.

(xxiv) From the enquiry conducted by the DRI, it does not appear that

Respondent No.5, Pune has made any mis-representations in the

proceedings before the SVB, New Custom House, Mumbai.

(xxv) Accordingly, the Additional Director, DRI, Mumbai after taking

into consideration and after thorough examination of the evidences

placed by the Petitioner and evidences found during the investigation

and with the approval of the Additional Director General, DRI,

Mumbai, decided to close the investigation for want of any

incriminating material indicating evasion of customs duty as alleged by

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the Petitioner. Before closure of the investigation, three letters were

sent to the Petitioner dated 27th May, 2019, 10th July, 2019 and 19th

August, 2019 seeking the additional information / documents

pertaining to the enquiry being conducted by DRI, MZU into import of

SUVs and vehicles caused by Respondent No. 5, however, statedly the

Petitioner chose not to reply to any of the said letters and as the

department did not find any incriminating evidences even after

thorough investigation spanning over a period of almost four years, the

investigation in the matter was closed after sharing the Investigation

Report with DG, DRI, New Delhi.

(xxvi) As regards the specific allegations made by the Petitioner

against Respondent no.5, Mr. Dada, Learned Senior Counsel has

referred to the table in paragraph 25 above.

(xxvii) It has been submitted by the Respondent authorities that in the

garb of a fresh Petition before this Court, the issue already investigated

by DRI and closed for want of any evidences should not be allowed to

be re-opened merely on the basis of bald, baseless, unfounded and

frivolous allegations.

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(xxviii) Respondent No. 3 found no undervaluation after

examining the documents submitted by the Respondent No. 5. That,

before concluding the investigation, the Respondent No. 3 wrote

various letters asking the Petitioner if he has any additional information

to submit but the Petitioner did not respond to the said letters and it is

only thereafter, that the proceedings were concluded.

Transaction value and price list

168. The transaction value is to be determined in accordance with the

Customs Valuation Rules relying upon the decision of the Hon'ble

Supreme Court in Eicher Tractors Ltd. v/s. Commissioner of Customs,

Mumbai, reported in 2000 (122) E.L.T. 321 (SC). A price list is no more

than a general quotation. It does not preclude discounts on the listed

price. A discount is a commercially acceptable measure, which may be

resorted to by a vendor for a variety of reasons including stock

clearance and that it is erroneous to reject the transaction value and

cannot be a reason by itself. A discount is calculated with reference to

the price list.

169. Accordingly on 28th July, 2023, this Special Bench had recorded

that arguments had been concluded on behalf of the Petitioner and

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thereafter the arguments on behalf of the Respondent No.5 as above

were also over and that the contention of the Respondent No.5 was

that the investigation had already been conducted and concluded by

the DRI and that there is no need for further investigation. During the

said hearing, this Bench had put a query to the learned Senior Advocate

for the DRI as to the stand of the DRI in respect of the other private

Respondents viz. Respondents No.6 and 7. The Learned Senior Counsel

for the DRI had submitted that the Petitioner had not submitted any

material in respect of the said Respondents inspite of having been given

an opportunity. Learned Senior Counsel for the DRI had submitted that

the material now placed on record by the Petitioner would be

examined. This Court had accordingly recorded that if the Petitioner

intends to file any additional material he can give the same within a

particular time period and that after examining the material thoroughly

the Court would be informed of the course of action the DRI intended

to take. Accordingly, the learned Senior Counsel for the Petitioner

submitted that if there was any additional material the same would be

given to the DRI within a period of three weeks with a copy to the

concerned private Respondents and the learned Senior Counsel for the

DRI had stated that the DRI would take 6 weeks after the Petitioner

submitted the additional information. Accordingly, at the request of the

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learned Senior Counsel for the DRI, the matter was stood over to 05 th

October, 2023. By the said order, the learned Senior Counsel for the

Petitioner agreed that in view of the aforesaid course of action, the

Petition could not be decided within the time limit of 3 months

stipulated by the Hon'ble Supreme Court and if necessary, the Petitioner

would request for an extension. The said order dated 28 th July, 2023 is

usefully quoted as under:

"This Petition is specially assigned to this bench.

2. On the last occasion the learned Counsel for the Petitioner had concluded his arguments. Thereafter, the arguments on behalf of Respondent No.5 were over. The contentions of Respondent No.5 was that the investigation has already been conducted and concluded by the Directorate of Revenue Intelligence (DRI) and there is no need for further investigation.

3. During the hearing we put a query to the learned Senior Advocate for the DRI as to the stand of the DRI in respect of other Private Respondents. The learned Senior Advocate for the DRI submitted that the Petitioner had not submitted any material in respect of these Respondents inspite of giving an opportunity. The learned Senior Advocate for the DRI submitted that the material now placed on record by the Petitioner would be examined. If the Petitioner intends to file any additional material, he can give the same within a particular time. After examining the material thoroughly, the Court will be informed of the course of action the DRI intends to take.

4. The learned Counsel for the Petitioner submits that if there is any additional material, the same will be given to the DRI within a period of three weeks with copy to the concerned

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private Respondents. The learned Senior Advocate for the DRI states that it would take six weeks after the Petitioner submits the additional information as above.

5. Therefore, at the request of the learned Senior Advocate for the DRI, stand over to 5 October 2023 at 4.35 p.m. under the caption "For Directions".

6. The learned Counsel for the Petitioner is agreeable to this course of action and states that the Petitioner is mindful of the fact that in view of this order, the Petition may not be decided within the time limit stipulated by the Hon'ble Supreme Court and if necessary, would request for an extension.

7. In the meanwhile, leave to amend is granted to the Respondent No.4 to annex the documents not annexed to the reply.

8. Amendment to be carried out within a period of one week."

Respondents No.6 and 7

170. Pursuant to the aforesaid order, Petitioner submitted certain

information with respect to Respondents No.6 and 7 through email of

16th August, 2023.

171. In respect of Respondents no. 6 and 7, the Learned Counsel for

the Petitioner, Learned ASG as well as the Learned Senior Counsel and

Counsel have made submissions.

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172. According to the Learned ASG, the Petitioner had not submitted

any material in respect of these Respondents earlier and the material

placed now on record by the Petitioner would be examined and further

that if the Petitioner intended to file any additional material, he could

give the same within a particular time, and after examining the said

material thoroughly, the Hon'ble Court would be informed of the course

of action the DRI would propose to take.

173. The Petitioner submitted certain information in respect of

Respondents No.6 and 7 through an email dated 16th August, 2023.

174. The Petitioner's claim has been observed to be general like all

luxury car imports by various multinational brands and is not specific.

The Petitioner had submitted that Respondent No.6 is importing Luxury

Cars viz. 'Porsche', 'Audi', 'Lamborghini' etc. from related parties viz.

M/s. Automobili Lamborghini, Italy, M/s. Audi, Germany and

PORSCHE Middle East & Africa FZE, Dubai, UAE by mis-declaration

and suppression of material particulars from the Customs Authorities.

Similarly, the Petitioner had also alleged that Respondent No.7 was

importing Luxury Cars from related parties, mainly BMW AG, Germany,

whether as Fully Built Units (FBUs) or in Completely Knocked Down

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(CKD) condition by mis-declaration and suppression of material

particulars from the Customs Authorities and that the said Respondents

are importing these luxury cars at ridiculously low and unrealistic

prices.

175. It has been observed that the information is very generic and is

an analysis made by the Petitioner mostly based on information

available in open source which is otherwise also available to the

assessing officers and the investigating agencies.

176. The Respondents have submitted that the Petitioner has invoked

the extraordinary jurisdiction of this Court without a clear

understanding of the Customs Valuation Rules and has also leveled

various sweeping allegations against the Respondents without

furnishing any credible documentary evidence to initiate an

investigation.

177. The Respondents have submitted that the writ petition filed by

the Petitioner is totally misconceived, lacking in proper understanding

of the Customs Valuation Rules, misleading, and devoid of any

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substance which appears to have been filed with an oblique motive and

that the same is liable to be dismissed with exemplary costs.

Prima facie no violation of Pricing Rules

178. That the Petitioner has relied upon the following factors :

(a) Purchase prices in other countries/regions such as the Middle East

(b) Retail prices/Website prices in the UK and Germany which were

mentioned on www.audi.co.uk, www.hrowen.co.uk, www.bmw.co.uk

etc.

(c) Comparison of import prices of cars that have been imported into

India as a one-off case by unrelated parties in India with prices

declared by related parties.

(d) Prices available in published magazines such as Auto Express Cars,

Top Gear etc.

(e) Misrepresentation and suppression of facts by Respondents No. 6

and 7 before the Special Valuation Branch (S.V.B) authorities.

179. The Respondent Authorities have submitted that the Petitioner's

comparison of purchase prices in other countries/regions, retail

prices/website prices in other countries, prices available in published

magazines, and import prices by unrelated parties with the import

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prices declared by Respondents No.6 and 7 as above is neither logical

nor legal and is not allowed as per the Customs Valuation Rules, 2007.

180. That Section 14 of the Customs Act, which lays down the

provisions for valuation of goods for the purpose of assessment of

customs duty is relevant. That prior to 2007, the concept of "deemed

value" was relevant as the then Section 14(1) of the Customs Act, 1962

stated that the value of the imported goods shall be the deemed price

at which such or like goods are ordinarily sold or offered for sale, for

delivery at the time and place of importation in the course of

international trade and that therefore, prior to 2007, the assessing

officer was not to see the actual value of the goods, but the value at

which such goods or like goods were ordinarily sold or offered for sale

for delivery at the time and place of import. Similarly, the words "in the

course of international trade" were relevant. The Assessing Officer was

to see the value of the goods not for each specific transaction, but the

ordinary value which the goods would have in the course of

international trade at the time and place of their import. That India

continued to have the deeming provision in the Customs Act, 1962 as

well as in the Valuation Rules, 1988 till 2007. Section 14 of the

Customs Act was amended vide the Finance Act, 2007 to value goods

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on the basis of transaction value as against deemed value. With the

amendment of Section 14 of the Customs Act, 1962 in 2007 as well as

with the introduction of the Customs Valuation Rules, 2007 ("CVR"),

the concept of "transaction value" became relevant and not deemed

value. As per the new Section 14 of the Customs Act, 1962 that was

introduced vide the Finance Act, 2007, the value of the imported goods

is the transaction value of such goods, that is, the price actually paid or

payable for the goods when sold for export to India for delivery at the

time and place of importation, where the buyer and 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.

181. Rule 12 of CVR, 2007 empowers the Assessing Officer to reject

the transaction value declared by the importer, which power is to be

exercised sparingly and only in cases where there are genuine doubts

relating to the authenticity of the declared value. The transaction value

cannot be rejected except for the grounds laid down under the

Valuation Rules. In Century Metal Recycling Pvt. Ltd. v. Union of India

[2019 (367) E.L.T. 3 (S.C.)] the Hon'ble Supreme Court, in Para 18 of

its decision, has held that:

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"It is only in case where the doubt of the proper officer persists after conducting examination of information including documents or on account of non-furnishing of information that the procedure for further investigation and determination of value in terms of Rules 4 to 9 would come into operation and would be applicable. Reasonable doubt will exist if the doubt is reasonable and for 'certain reasons' and not Ideas fanciful and absurd. A doubt to justify detailed enquiry under the proviso to Section 14 read with Rule 12 should not be based on initial apprehension, be imaginary or a mere perception not founded on reasonable and 'certain' material. It should be based and predicated on grounds and material in the form of 'certain reasons' and not me reasons would be contrary to the scheme and because one is distrustful and unsure without reasonable and certain purpose behind the provisions which ensure quick and expeditious clearance of import goods."

182. It has been submitted that the Petitioner has been speculating on

undervaluation by Respondents 6 and 7 without any hard evidence and

is demanding an investigation into the matter based on mere suspicion.

According to the Respondents, the following facts further counter the

speculative reasoning put forward by the Petitioner:

a) The retail sale price of same or similar cars in a country

other than India cannot be a basis for the valuation of cars

at the time of import of the same into India. It is submitted

that the same is specifically barred by Rule 9(2) of the

Customs Valuation Rules, 2007 which states that "No value

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shall be determined under the provisions of this rule on

the basis of -(v) - the price of the goods for the export to a

country other than India.

b) Further, Customs Valuation Rules, 2007 also prescribe that

no value shall be determined under the provisions of Rule

9(2) based on the price of goods in the domestic market of

the country of exportation.

c) Also, the GATT valuation agreement states that valuation

based on the price of goods in the domestic market of the

country of exportation would go against the principle that

valuation procedures should not be used to combat

dumping.

d) The cars available in other countries may not be similar in

specifications/technology and, hence, it is otherwise also

not reasonable to compare the prices of cars merely based

on similarity of description.

Provisional and not final assessment of Bills of Entry

183. According to the Respondent Authorities, comparison of the price

of one-off cars imported by unrelated parties in India with the cars

imported by Respondents 6 and 7 in India is erroneous. That hundreds

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of cars are imported into India by the related parties i.e., Respondents

6 and 7 as compared to one or two cars by unrelated parties. It has

been submitted that the value of goods can only be compared if they

are contemporaneous and of similar commercial quantity. Transaction

value declared by the importers cannot be rejected merely based on

import by an unrelated party without considering other commercial

factors. Further, that the two sample Bills of Entry submitted by

Petitioner have been examined and it has been observed that in both

the case of imports by unrelated parties, the import is on a High Seas

Sale basis and, hence, the sale is at a premium to adjust for dealer's

margins and for various costs such as marketing, distribution, logistics,

etc. That this ensures that the retail price at which the cars are sold by

the retailers to end customers is nearly the same as the prices of cars

when imported on a High Seas Sale basis. It is also submitted that just

by subtracting the High Seas Sale loading value from the overall

assessable value as declared by the unrelated parties, the import prices

closely approximate to the prices declared by the related parties. It has

been submitted by an example, that the Bill of Entry No. 8863665

dated 26th December, 2012 and Bill of Entry No. 8750215 dated 13 th

December, 2012 that were submitted by the Petitioner as part of the

documents sent by him vide email dated 16 th August, 2023 were

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examined. In the Bill of Entry No. 8863665 dated 26 th December, 2012,

it was observed that the assessable value was Rs. 2699668.90 which

included the High Seas Sale Loading Amount of Rs. 441138. It has

been submitted that therefore after subtracting this amount, the value

arrived at Rs. 2258530.90 which is comparable to the assessable value

of Rs. 1993820 in Bill of Entry No. 8750215 dated 13 th December, 2012

filed by Respondent No.7 given that imports by unrelated parties may

include other fittings and accessories in addition to the standard

components.

184. It has also been submitted that it is a statutory obligation and

duty of the Respondents to investigate into offences committed under

the Customs Act and that the department has always been at the

forefront in taking appropriate action whenever actionable intelligence

in the form of credible documentary evidence is available with the

department and that a Show Cause Notice vide F.No. DGCEI/MZU/I &

IS'C'/30-81/06 dated 31st March, 2008 was issued to Respondent No.6

by the DGCEI, Mumbai in respect of valuation.

185. That unlike in the present writ petition where the Petitioner is

demanding a roving inquiry based on mere hunches and accusations

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without any credible documentary evidence that is actionable, the

aforesaid Show Cause Notice was based on very specific intelligence

with the department that USD 45 million, which was paid by

Respondent No.6 to M/s. Skoda Auto AS, Czech towards "Technical

know-how/Technological Transfer Fees", has not been included in the

value of the imported cars. It has been submitted that, presently, the

issue is pending before the Hon'ble Supreme Court of India.

186. That all the Bills of Entry filed by Respondent No.6 for the import

of cars, parts, and accessories, have been assessed provisionally since

then.

187. Respondent No.7 was also issued a Show Cause Notice vide F.No.

DRI/DZU/JRU/19/ENQ-1(INT-1)/2014/ 679-690 dated 29th May, 2015

by the D.R.I., Delhi Zonal Unit based on very specific intelligence with

the department that the Brand Promotion Expense incurred by

Respondent No.7 on behalf of their related foreign supplier has not

been included in the value of the cars imported by them unlike in the

present case where the Petitioner is leveling sweeping allegations

without any concrete evidence sufficient to cause investigation into the

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matter and that the Bills of Entry filed by Respondent No.7 for the

import of cars are being assessed provisionally at present.

188. The Petitioner had alleged that Respondents No.6 and 7 have

suppressed the Price Pattern from Special Valuation Branch (SVB)

Authorities which was required to be provided, as per the Board's

Circulars, to arrive at a decision to accept or reject the declared value.

That the Petitioner had also alleged that the prices declared by

Respondent No.7 to the SVB are not in the ordinary course of business

under fully competitive conditions and the Orders obtained from the

SVB are based on false undertaking/affidavits/assurance that their

admitted relationship with the foreign supplier has not influenced the

import price declared by them. It was also alleged that the Respondents

have not submitted the price lists for the goods being imported by them

and that pricing details of goods supplied to buyers/branches

/collaborators in other countries as required to be provided by the

Respondents in accordance with the question at S.No.29 of Annex-A of

Circular 11/2001 dated 23rd February, 2001 which have not been

provided.

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189. On behalf of the Respondent Authorities, Learned ASG has

submitted that Circular 11/2001 dated 23rd February, 2001, issued in

accordance with the earlier Customs Valuation Rules, 1997, was

superseded by Circular No. 05/2016 dated 09th February, 2016 which

was issued in accordance with the Customs Valuation (Determination

of Value of Imported Goods) Rules, 2007 and therefore, it is no longer

required to submit pricing details of goods supplied to

buyers/branches/ collaborators in other countries as per the new

circular. That, as per question 5.5 of Annex-A of Circular No. 05/2016

dated 09th February, 2016, the importers are required to provide copies

of price list and the basis of arriving at the invoice value only if the

price of imported goods was determined based on a price list.

190. In the case of the Respondents No. 6 and 7 they have declared

that their price based on a Transfer Price and not based on a price list

and therefore the allegation of non-submission of price list would not

be relevant.

191. That, therefore, prima facie, there doesn't appear to be any

misrepresentation or suppression as alleged by the Petitioner.

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192. That even if it is assumed that a price list exists and is not

submitted, it does not lay ground for the rejection of the transaction

value declared by Respondents No. 6 and 7. In Mirah Exports Pvt. Ltd.

v. Collector of Customs 1998 (98) E.L.T. the Supreme Court has held

that,

"The legal position is well settled that the burden of proving a charge of undervaluation lies upon Revenue and Revenue has to produce the necessary evidence to prove the said charge.

"Ordinarily, the Court should proceed on the basis that the apparent tenor of the agreement reflect the real state of affairs"

and what is to be examined is "whether the revenue has succeeded in showing that the apparent is not the real and that the price shown in the invoices does not reflect the true sale price." [See: Union of India Vs. Mahindra & Mahindra (supra), at p. 487 In the present case, the only evidence that was adduced by Revenue in support of the charge of under-valuation is the price list No. 8102 dated February 15, 1981 which was found during the course of search in the premises of Skefko, etc. that was conducted by the officers of the enforcement Directorate on or about June 22, 1983."

193. Therefore, the price list of the foreign supplier/ manufacturer is

not a proof of transaction value invariably, and existence of the price

list cannot be the sole reason to reject the transaction value. As noted

above, price list is no more than a general quotation. It does not

preclude discounts, which may be granted for a variety of reasons

including stock clearance. Further, mere production of price list cannot

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discharge the onus on the customs authorities to prove the existence of

special circumstances indicated under Section 14 of the Customs Act,

1962 read with the Customs Valuation Rules, 2007.

194. The Petitioner's reliance upon the judgments of the tribunal in

SA Putehally v. Comm. Of Customs (2004) 178 ELT 861 (Tri.) where

the contention of the DRI to value the cars based on the "Tourist Price

List" issued by the German manufacturer it has been submitted was

upheld and which has been confirmed in the judgment of the Hon'ble

Supreme Court in Gerson Da Cunha v. Commissioner of Customs

(2015) 16 SCC 682, has been distinguished by the learned ASG on the

basis that in that case, concrete evidence regarding the mis-declaration

of the capacity of the engine declared to be less than 1500 cc as against

the actual capacity which is greater than 1500 cc was found based on

testing of the cars, warranting the rejection of the declared transaction

value.

195. Further with respect to the Petitioner's reliance upon the ratio in

A.V. Papayya Sastry v. Govt. of A.P. (2007) 4 SCC 221 to emphasize

that favorable orders fraudulently obtained by the Respondents are

non-est, void ab-initio and nullity in the eyes of the law, and the

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judgments in the cases of Century Metal Recycling (P) Ltd. v. Union of

India, (2019) 6 SCC 655, Padia Sales Corpn. V. Collector of Customs,

Bombay, 1993 Supp (4) SCC 57, Sharp Business Machines (P) Ltd.,

(1991) 1 SCC 154, Habasit Lakoka Pvt. Ltd. vs. CC (Imports) - 2015

(321) E.L.T. 15 (S.C.), Mytri Enterprises vs. Commissioner -2015 (323)

ELT A71 (SC), and Varsha Plastics (P) Ltd. v. Union of India, (2009) 3

SCC 365 to highlight the fact that valuation can be redetermined by

rejecting the declared value, it has been submitted that the petitioner

is unmindful of the fact that the question in the present petition is not

so much as to whether the declared value can be rejected or not, but

whether there are reasonable grounds to reject the transaction value

declared by Respondents No. 6 and 7 in accordance with the statutory

provisions.

Respondent No.6

196. The material relied upon by the Petitioner is extraneous and

irrelevant for the purposes of custom's valuation and there is no

suppression before the customs/SVB authorities.

Impermissible to compare the prices in the domestic market of other

countries

197. The new Customs Valuation Rules inter alia, provide that:

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(i) Rule 3(3)(a) and Rule 3(3)(b) provide when transaction

value is to be accepted where the buyer and seller are related.

(ii) If the transaction value cannot be accepted, then value is

to be determined by proceeding sequentially through rules 4

to 9.

(iii) Rule 9, which is the residual method for valuation,

provides for the value to be determined using "reasonable

means consistent with the principles and general provisions"

of the Customs Valuation Rules, and expressly excludes

certain basis for determining the value. In fact Rule 9 (2)

expressly prohibits determination of value on the basis of "the

price of the goods in the domestic market of the country of

exportation". Thus, when it is not permissible to compare the

price of goods in the domestic market of country of

exportation, it is manifestly impermissible to compare the

prices in the domestic market of other countries. In the

present case, the Petitioner has purported to compare the

price in the domestic market of other countries such as UK

and not just the wholesale price but the retail price which is

manifestly impermissible. Further, Rule 9 (2) expressly

prohibits determination of value on the basis of "the price of

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the goods for the export to a country other than India".

198. The Petitioner is seeking to compare the price in the domestic

market of other, countries such as UK and not just the whole sale price

but retail price which is manifestly impermissible.

199. That therefore it is impermissible to compare prices of goods for

export to UAE. The Petitioner has purported to compare the price of car

purchased by Porsche Middle East & Africa FZE, Dubai for import into

Dubai.

200. Rule 12 provides when "proper officer" under Customs has reason

to doubt the declared import value and that as settled in Century Metal

Recycling Private Limited v Union of India 2009 (367) ELT 3 (SC)],

that rejection of the transaction value has to be done sparingly and only

with evidence and a doubt to justify detailed enquiry under the proviso

to section 14 read with Rule 12 should not be based on initial

apprehension, be imaginary or a mere perception not founded on

reasonable and 'certain' material. It should be based and predicated on

grounds and material in the form of certain reasons and not mere ipse

dixit. It is not permissible to subject imports on mere suspicion because

one is distrustful and unsure without reasonable and certain reasons as

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that would be contrary to the scheme and purpose behind the

provisions which ensure quick and expeditious clearance of imported

goods.

201. Comparison with the purchase price of car purchased by Porsche

Middle East and Africa FZE, Dubai, from Porsche AG Germany which

cars are for delivery in UAE by the Petitioner is improper.

202. It has been submitted that :

(i) The Petitioner has referred to various Invoices and sea-way bills

in respect of import by Porsche Middle East in UAE for delivery in

Dubai. The invoices of cars imported by Porsche Middle East are cars

admittedly "for UAE delivery".

(ii) These cars are imported by Porsche Middle East for use in the

domestic market in Dubai. These cars are not exported to India. This is

clear from the invoices and sea-way bills which have been annexed by

the Petitioner and which show supply by Porsche Germany to Porsche

Middle East, where port of departure is in Germany and port of

destination is UAE.

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(iii) As the Petitioner did not provide the bills of entry along with the

corresponding invoices and certificate of origin in respect of imports

made by Respondent No. 6, Respondent No. 6 filed an Additional

affidavit dated 30 June 2023 in which Respondent No. 6 has provided

(a) bills of entry, (b) corresponding invoices and (c) certificate of origin

in respect of the imports of Porsche cars imported by Respondent No.6

in India as referred by the Petitioner at paras (i) to (iv) at Pgs. 45 to 47

of Petition. Documents produced in the Additional Affidavit clearly

show that the cars imported by Respondent No.6 in India, though sold

by Porsche Middle East to Respondent No.6 for sale in the Indian

market, are shipped by Porsche AG, Germany directly from

Bremerhaven in Germany to Respondent No.6 in India. The import of

cars in India from Germany is a distinct transaction stream from import

of cars into the UAE from Germany.

(iv) Cars imported into the UAE are not further sold to/in India.

(v) Petitioner has wrongly and deliberately attempted to mislead this

Court by stating that Porsche Middle East has sold the Porsche cars

imported into the UAE by it to Respondent No.6 in India at prices lower

than the purchase/procurement price of said cars by Porsche Middle

East from Porsche AG, Germany.

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(vi) Further, Petitioner has wrongly stated during oral arguments that

the said "facts are not in dispute". This is an untenable submission

considering the fact that that the issue is very much disputed by

Respondent No. 6 in the affidavits filed by Respondent No.6: a.Pg. 529

- 532 (paras 36, 37 and 39), and Pg. 541 [para 57(iii)] of R.6's Reply;

b. Pg. 1267 - 1269 (paras 2 to 5) R.6's Additional Affidavit; c. Pg. 1224

(para 16) of R.6's Affidavit; d. Pg. 17 (Para 27) of R.6's Affidavit in

reply to Interim Application of the Petitioner.

(vii) The Petitioner had neither provided the said data to DRI,

including vide his letter dated 9.01.2015 at Exh A, Pg. 89 of Petition,

nor provided before the Hon'ble Supreme Court; and the said data is

being provided for the first time in the present petition before this

Hon'ble Court. As the present petition was filed premised on purported

inaction on part of DRI, the said data besides being wholly irrelevant

cannot be now relied upon as stated in Respondent No.6's Submissions

at paragrapg 27 of Respondent No.6's Affidavit in reply to Interim

Application.

(viii) Further, as the Petitioner has not disclosed the source of the data

or any particulars pertaining to purchases by Porsche Middle East,

therefore the said data cannot be relied upon.

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(ix) There is no Rule, or method of valuation, under the Customs

Valuation Rules which requires comparison with imports in another

country.

(x) Rule 9 of the Customs Valuation Rules expressly prohibits

determination of value on the basis of "the price of the goods for the

export to a country other than India".

(xi) Additionally, the import prices of cars for different countries are

not comparable as -

a) Import prices of cars for different countries have correlation to

several country specific factors - The economic factors, such as the

demand pattern of the customers within the market, the competitive

factors and its impact on retail prices;

The nature of operations of the importer within the country;

along with the functions and risks assumed by the importing entity,

along with associated costs. Whether the importer deploying assets,

and bearing risks in relation to stock risk, working capital risk, etc. and

incurring costs in relation to promotion and marketing costs, nature of

overhead costs, etc.

The supply chain for import, distribution and retail sale adopted

within the country; and the margins and costs associated at each leg of

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such supply chain, including rates of taxes and duties in the market.

Any specific regulatory requirements in the country requiring the

cars to be built with certain country-specific features / configurations.

b) Even for cars of the same model, there could be various

options available. Also, basic features of the cars keep on updating at

regular intervals- therefore, there are different generations of the same

model of the car. A different generation of car may be sold in UAE (for

example, third generation Porsche MACAN) when different generation

of car may be sold in India (second generation Porsche MACAN).

c) Different configurations, customization options/ on-top

features, extras, etc. would be available in different countries. Porsche

India offers limited customization options to Indian customers as

compared to customization options offered in Dubai.

203. With respect to the grievance made by the Petitioner to the

purported non production of suppliers/manufacturers price list, it has

been submitted that the same is without any basis as:

(i) In the letter dated 09 th January, 2015 issued by Petitioner to

Respondent No. 3, the petition filed before the Hon'ble Supreme Court,

and in the present Petition - no reference has been made by the

Petitioner to any foreign supplier's / manufacturer's price list in the

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context of imports by Respondent No.6. Accordingly, no allegations can

be made against Respondent No.6 by reference to any purported price

lists.

(ii) That for the first time, the Petitioner has in his Rejoinder in I.A. (L)

No. 9504 of 2023 filed before this Court on 29 th April 2023, at Pg. 81

(para 11) made reference to a document in German language (without

English translation) stated to be "Price List of June 2016 for variants of

A8 model of Audi AG, Germany from www.audi.de" [at Pgs. 367 to

426 of Compilation annexed to said Rejoinder]. It has been

submitted that this is a sales brochure available for end-customers

in Germany to have a look at the car, its configurations and features,

extras, and the correlated price range. The sales brochure contains

prices offered /recommended at the retail sales level in Germany. In

support, it has been submitted that as annexed to the written

submission at Exhibit A, is a query raised on Audi Germany website

which makes it abundantly clear that this brochure is a sales brochure

and the prices are retail sales. This document has no

correlation/relevance whatsoever to the import prices of cars sold to

other countries (including India) and has been produced by the

Petitioner only to mislead this Court. It is submitted that the Petitioner

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has not made any attempts to make inquiries in respect of the nature of

the document, or even translated the document, before furnishing the

said document before this Court for compelling the Court to exercise of

its writ jurisdiction. That German language document is a 2016

document and has no relevance to the SVB Order that was passed on

15th January, 2009 against Respondent No. 6, and therefore this

document cannot be the basis for alleging any suppression before the

SVB authorities.

(iii) The import prices of Respondent No.6 are not on the basis of any

price list and therefore there was no requirement to furnish any

purported price list before SVB authorities.

(iv) As per the SVB Circulars, the importer is required to provide price

list only where the import prices are as per price list;

(v) This Court's attention has been drawn to -

a) Circular 11/2001 dated 23rd February, 2001 - Pgs. 308 to 313 of

Petitioner's Rejoinder in I.A. (L) No. 9504 of 2023 to submit that:

 As per Q22 of Questionnaire [Pg. 311], from the wording of the

said question itself, it is clear that there could be several different

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basis for arriving at the invoice price.

 The documents listed at Pgs. 312-313 are to be given to the SVB

authorities only if those documents are relevant in the facts of

the importer's case.

 It is not the case of the SVB authorities that there was

suppression on the part of Respondent No.6 or 7. The

consequences for the importer not furnishing complete reply to

the SVB questionnaire set out at Pg. 310 (para 9).

b) Circular 5/2016 dated 09th February, 2016 - Pgs. 297 to 307 of

Petitioner's Rejoinder to submit that:

 As per Q 5.5, 5.6 and Q5.7 of the Questionnaire [Pg. 301] it is

apparent that there could be several different basis for arriving at

the invoice price, and where import price is not as per price list,

then question of furnishing any price list does not arise.

c) Petitioner has incorrectly submitted that as per Circular 11/2001 it

was mandatory to provide price list, the said Circular being applicable

in respect of the SVB Order dated 15th January, 2009 of Respondent

No.6.

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(vi) It has been submitted that following position emerges as per

settled law as regards reference to suppliers/manufacturer's price list

for the purpose of Customs valuation, -

a) For making reference to price-list, there has to exist a

supplier's/ manufacturer's price list providing for import prices and/ or

the recommended selling prices of the importer;

b) The price lists provide general quotations which are subject to

negotiations, and which do not preclude discounts, and cannot be the

sole reason for rejecting transaction value [para 22 of the judgement in

the case of Eicher Motors - Respondent No.6's compilation page 1].

c) Discounts on price list prices is a recognized feature of

international trade practice, which can be for variety of reasons. In

cases, discounts ranging from 40% to 76% on price list prices has been

allowed [judgements of Eicher Motors (supra), Mirah Exports (supra),

Komet Precision Tools India Pvt. Ltd.(supra)]

d) Further, to rely upon any price list, there has to be evidence

of import at the said price list [para 8 of Mirah Exports (supra)]

e) Price lists have been referred by the Courts in the context of

section 14 of the Customs Act, prior to its amendment in 2007,

according to which -

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 "the value of such goods shall be deemed to be the price at which

such or like goods are ordinarily sold, or offered for sale, for

delivery at the time and place of importation or exportation, as

the case may be, in the course of international trade,

 Section 14 (prior to, and post, amendment in 2007) is available

in the Compilation of Judgments submitted by Respondent No.6

(vii) The Petitioner's statements that each foreign supplier has price

list on the website, and that it was mandatory to submit the price list to

SVB authorities is false to his knowledge and are made to deliberately

mislead this Court.

(viii) There being a price list for dealer tools and dealer equipment

imported by Respondent No.6 from Volkswagen AG cannot be the basis

to infer that there exists price list of Audi AG for supply of cars to

Respondent No.6. The prices for dealer tools and dealer equipment are

applicable to all dealers and such tools/ equipment are not on country

specific requirements/configurations as in the case of cars. It is

submitted that the said document is therefore wholly irrelevant.

204. With respect to comparison by the Petitioner with retail prices in

the UK, it has been submitted that:

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(i) Respondent No.6 has in its pleadings pointed out that such

comparison is not legal and hence such documents and

pleadings made by the Petitioner are irrelevant

(ii) There is no Rule, or method of valuation, under the Customs

Valuation Rules which allow comparison with retail price of

goods in the domestic-market of another country.

(iii) It is reiterated that Rule 9 of the Customs Valuation Rules

expressly prohibits determination of value on the basis of "the

price of the goods on the domestic market of the country of

exportation".

(iv) Where the price of goods in the domestic market of the

country of exportation itself cannot be considered, then

question of considering price of goods in the domestic market

of a third country (other than the manufacturer's country and

importer's country) does not arise.

(v) That additionally, the retail price in the domestic market of

another country is not comparable for several reasons, inter

alia -

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a. Firstly, import prices of cars for different countries can be

different (for reasons discussed earlier);

b. Secondly, the purchase price offered to actual consumers are

significantly more than the import price paid by the importer.

Imported cars reaches the ultimate customer through supply

chain comprising of importer, dealer, etc. Each entity in the

supply chain carries out certain functions, deploys assets and

bears certain risks and there are associated costs incurred.

Further, there are local taxes on sale of goods.

205. As regards, the comparison with imports of unrelated entities, it

is submitted that in terms of Rule 12(2)(iii)(a) and Rule 4 and Rule 5

of the Customs Valuation Rules for comparison with imports by

unrelated entities, the following examination would be required -

a) Whether the cars being imported are comparable being

"identical goods" [Rule 2(1)(d)] or "similar goods" [Rule 2(1)

(f)].

b) Whether the imports are at the same commercial level [Rule

4(i)(b)]

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c) Whether the imports are at same quantity levels [Rule 4(i)

(b)];

d) Whether there are more than one comparable transaction, and

amongst such transactions which is the transaction at the lowest

value [Rule 4(3)].

206. The Petitioner has not produced the following import documents

of the so-called comparable imports, so that it is impossible for anyone

including Respondent No.6 to give any cogent reply as to whether they

are identical, similar, whether they are imports at the same commercial

level and the same quantity levels:

a) For the import of one Audi car referred at Pg. 50 of Petition, import

documents (i.e., the bill of entry) not provided, along with not stating

the name of the unrelated importer. Examination of bills of entry

necessary to examine the import price assessed by the Customs

authorities, and for the Respondent No.6 to make any specific

submissions in this regard.

b) No Bill of entry is provided in respect of a stray import of

Lamborghini car referred at pg. 51 of Petition.

c) Bills of entry of unrelated importers cannot be available with

Respondent No.6.

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207. Imports at different commercial levels and at different quantity

levels cannot be compared.

208. It is submitted that reference by the Petitioner to import of

'Bentley' cars cannot be the basis to allege undervaluation of imports by

Respondent No.6 of Audi, Porsche and Lamborghini cars.

209. The Petitioner vide its letter dated 09 th January, 2015 issued to

Respondent No.3 has given information in relation to imports by Tata

Motors Pvt. Ltd. which information is similar in nature to the

information provided in respect of imports by Respondent No.6 but

Petitioner has selectively targeted Respondent No.6 and certain other

importers, by making baseless and reckless allegations.

210. Relevance of transfer pricing reports for the purpose of Customs

Valuation (the Petitioner has alleged that Transfer Pricing is irrelevant

and that accepting the transfer price is not correct). It has been

submitted that this is a totally erroneous submission for the following

reasons:

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(i) As per Rule 3(3)(a) of Customs Valuation Rules, there is

requirement to examine circumstances surrounding the sale.

(ii) Circular 5/2016 [at Pg. 302 of Petitioners Rejoinder

Affidavit] requires importer to submit Transfer Pricing Report

filed before Income-tax Department, and also the Advance

Pricing Agreement.

(iii) Circular of 2001 where it is specifically asked as to whether

the prices are fixed on the basis of transfer price.

(iv) The import prices of Respondent no.6 are transfer prices

arrived on arm's length basis

211. SVB is a specialised institution dealing with imports by

Respondent No.6 and there is no suppression/fraud by the said

Respondents before SVB authorities. The SVB Circulars also provide for

consequences if the importer does not furnish complete reply to the

SVB questionnaire or provide the documents/ details.

212. In respect of imports by Respondent No. 6, the case was

registered with SVB authorities in 2007, and the SVB authorities after

carrying out detailed examination passed the SVB Order on 15.01.2009

and that before passing the order, Respondent No.6 has furnished its

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reply to questionnaire, extensive documents and details, SVB

submissions, inter alia vide-

a) Letter dated 4.10.2008;

b) Two letters dated 30.10.2008 furnished during personal

hearing on 31.10.2008;

c) Note dated 19.11.2008;

d) Letter dated 4.12.2008.

So far no credible material for punitive action by the authorities

213. That it was not the case of Customs / SVB authorities that there

was any suppression/ mis-declaration by Respondent No.6. It is

submitted that:

(i) Suppression / mis-declaration, if any, can only be dealt

with by relevant authorities under the Customs Act by

initiating proceedings as per procedure recognized under

the Customs Act and there can be no proceedings de hors

Customs Act.

(ii) This would entail issuance of Show Cause Notice under

section 28 of Customs Act by the "proper officer"

designated under the Customs Act and conducting hearing,

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prior to any decision/ adjudication as to suppression / mis-

declaration before the SVB authorities,

(iii) Any order passed in such adjudication proceedings would

then be subject to appeal proceedings by "aggrieved

person" or relevant Customs authorities under section 128

or section 129A of the Customs Act.

214. It has been submitted that the Petitioner is seeking to circumvent

the proceedings and procedures under the Customs Act, which should

not be permitted by this Court in its writ jurisdiction.

215. That the material relied upon by the Petitioner is extraneous and

entirely irrelevant for the purposes of customs valuation. Therefore,

reliance placed on the said material to allege suppression / mis-

declaration / fraud by Respondent No.6 is erroneous.

SVB Orders pending in appeal and SVB Orders for subsequent period

pending

216. As the SVB Order was passed on 15th January, 2009, the material

and data furnished by the Petitioner in the present Petition pertaining

to the period subsequent to such date, cannot be the basis to state that

there was suppression / mis-declaration / fraud before SVB authorities.

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217. That in appeal proceedings from the SVB Order, Respondent No.6

has succeeded before the Tribunal, and the Customs authorities have

filed an appeal from the Tribunal's Order before the Hon'ble Supreme

Court which is pending before the Hon'ble Supreme Court. The SVB

Order has attained finality in law, subject to issues in appeal

proceedings.

218. It has been submitted that when the appeal proceedings from the

SVB Order are pending before the Hon'ble Supreme Court, this Court

should not be called upon to set aside the SVB Order. This Court cannot

be called upon to act contrary to the statutory appellate provisions. SVB

proceedings for subsequent period are pending.

219. The SVB Order was filed for a period of 3 years. Proceedings for

the subsequent period are pending before the SVB authorities.

220. It has been submitted that Respondent No.6 has provided the

relevant information to SVB authorities and followed the procedure as

laid down in Circular No. 4/2016 and Circular No. 5/2016.

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221. That as required under the said circulars, the imports by

Respondent No.6 are assessed provisionally on which on having

furnished appropriate provisional duty.

222. If deemed necessary, the SVB authorities can ask for further

information or details from Respondent No.6 (including on examining

the present proceedings) and the said Respondents would be required

to provide the same.

223. On behalf of Respondent No.6 it has been submitted that the DRI

has concluded that there is no evasion of customs duty and the premise

of the present Petition as to the inaction on the part of Respondent

No.3 is belied that:

a) As per Hon'ble Supreme Court's Order dated 15.07.2016

Respondent No.3 was to take appropriate action as advised in

law only if the Respondent No.3 was convinced that the

information given by the Petitioner was credible information.

b) The Petitioner filed the present Petition premised on purported

inaction on the part of Respondent No.3

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c) Respondent No.3 has concluded that there is no case of

evasion of Customs duties based on information provided by the

Petitioner:

i. Respondent No.3 has as regards Petitioner's letter dated

9.1.2015 stated that the Petitioner had not provided any

concrete or prima facie evidence in support of his allegations,

and that there was no credible evidence

ii. Vide letters dated 9.9.2016 and 25.11.2016 filed subsequent

to the Hon'ble Supreme Court's Order dated 15.07.2016, no

information and material has been furnished by Petitioner

pertaining to Respondent No.6 but only as regards Respondent

No.5.

iii. As admitted by the Petitioner if information regarding

Respondent No.5 (Mercedes) would have been found credible

and investigation would show that information recorded would

result in detention and recovery of duty; then recording separate

DRI-1 statement for investigation into other importers was to be

considered.

iv. Detailed investigation conducted against Respondent No. 5

v. Thorough investigation conducted and concluded by

Respondent No.3.

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d) The Petitioner's statement that Respondent No.3 has not

investigated imports of Respondent No.6 is belied, when on

Respondent No.3 carrying out thorough investigation it was

found that the information being furnished by the Petitioner is

not credible.

e) In view of investigation by the DRI of Respondent No.6's

imports the Petitioner's statement is incorrect and misleading.

f) Statedly the premise of the Petition as to alleged inaction

on part of Respondent No. 3 based on data provided by

Petitioner, stands belied. That the stated premise of the Petition

being the alleged inaction on the part of the Respondent No. 3 is

also noted by the Hon'ble Supreme Court in its Order dated 29 th

March 2023 in disposing of the Special Leave Petitions No. 6609-

6610 / 2023.

g) It is submitted that subsequent to Hon'ble Supreme Court's

Order dated 29th March 2023, the Petitioner has by seeking

additional prayer sought to fundamentally change the nature and

character of the proceedings by way of expanding the reliefs

sought by challenging the SVB Orders.

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224. That after several hearings, this Court directed the DRI to

reconsider the evidence produced by the Petitioner not only prior to the

filing of the petition but even during the pendency of the petition and

permitted the Petitioner to even file further documents for

consideration by the DRI. After considering all the documents, the DRI

has filed its latest affidavit in which they have stated that there is no

material or evidence produced by the Petitioner which even remotely

suggests that there was any under valuation with regard to the imports

made by the various Respondent importers.

225. That therefore this Court cannot be called upon to enter into

disputed question of facts in the writ jurisdiction.

226. The Petition requires this Court to enter into a detailed enquiry

and investigation into the disputed questions of facts in its writ

jurisdiction, at the behest of the Petitioner who has raised reckless and

baseless allegations, to decide on-

(i) whether the data provided by the Petitioner is relevant under

Customs law for determining the assessable value of imports by

Respondent No.6,

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(ii) whether there was any suppression or fraud by the Respondent

No.6 before the SVB authorities which should not be permitted.

227. It is urged that the conduct of the Petitioner should dis-entitle

him from any reliefs from this Court. Petitioner's role, if at all, can be

that of an informant, and should have been confined to furnishing of

the information to Respondent No.3. This is also as per Hon'ble

Supreme Court's Order dated 15th July, 2016.

228. It is submitted that the Petitioner has been unduly seeking to

compel the conduct and conclusion of investigation by statutory

authorities (Respondent No.3) as per Petitioner's agenda - (i) by

making reckless and baseless allegations based on irrelevant material

and truthful statements, (ii) by bringing frivolous proceedings before

different Courts, and (iii) for improper motives.

229. It has been submitted that these proceedings have been initiated

for personal gains - by way of monetary reward.

230. It has further been submitted that the Petitioner has not disclosed

source of information/ details which are proprietary in nature (clause

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(m) of the Petitioner's affidavit on locus dated 1 st December 2022, page

1165). It is beyond comprehension as to how in his role as an advocate

he obtained this proprietary confidential information.

231. It was submitted that the Petitioner had concealed material facts:

(i) Petitioner did not disclose three letters (dated 27 th May, 2019, 10th

July, 2019 & 19th August, 2019) issued by Respondent No.3 requesting

for information and that Petitioner has not responded to these letters

a) Pg.1221(para 12) of Additional Reply of Respondent No.6

b) Pg. 696 (paras 11 and 12) of Reply of Respondent No.5

c) Pg. 848 (para 15) of Petitioner's Rejoinder.

(ii) Petitioner had not made efforts / attempts to find out relevant facts

- re status of investigation by Respondent No.3 after providing

information in 2016, before filing the present Petition in February

2022.

232. Petitioner has been approaching different forums and resorting to

Forum Shopping by bringing frivolous proceedings before different

Courts. Pursuant to Hon'ble Supreme Court's Order of 15.07.2016, by

relying upon the material submitted by Petitioner with Respondent

No.3, on 24 August 2020 Civil Writ Petition (PIL) No. 9425 of 2020 was

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filed before the Rajasthan High Court;

(i) Petitioner herein was made Respondent no. 5 in the petition before Rajasthan High Court;

(ii) Affidavit in Reply filed by Respondent No.3 before Rajasthan High Court on 25th November 2020.

Delay and Laches

233. That the Petition suffers from inordinate delay and laches and

deserves to be dismissed. Learned senior counsel submits that

subsequent to the Petitioner furnishing of information and Petitioner's

visits to Respondent No.3, all in 2015 and 2016, there has been

inordinate delay of more than 5 (five) years with the present Petition

having been filed in January 2022, and no explanation whatsoever

provided by the Petitioner in the Petition for the interregnum period.

That the Petitioner had furnished information to Respondent No.3

stated to be relevant as to Respondent No.6's imports only in January

2015 (i.e., letter dated 09th January, 2015 and the present Petition filed

in January 2022 has been filed after an unexplained delay of 7 (seven)

years.

234. That the Petitioner has wrongly stated that the same Porsche cars

imported into UAE by Porsche Middle East & Africa FZE, Dubai

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("Porsche Middle East") are sold by Porsche Middle East to Respondent

No.6 in India. In this regard, it has been submitted as follows -

i. Respondent No.6 has furnished the bills of entry, corresponding

invoices and certificate of origin in respect of Porsche cars imported by

Respondent No.6 in India, as were referred in the Petition in paras (i)

to (iv) at pgs. 45 to 47. [Pgs. 1271 to 1289 of the Additional affidavit

of Respondent No.6]. From the said documents on record, it s evident

that the Porsche cars imported by Respondent No.6 in India are

shipped/ exported by Porsche AG Germany directly from Bremerhaven

in Germany to Respondent No.6 in Mumbai, India.

ii. Porsche cars relevant for Indian market which are sold by Porsche

Middle Bast to Respondent No.6 for sale in India are shipped directly

by Porsche AG Germany from Bremerhaven in Germany to Respondent

No.6 in India. The import of cars in India from Germany is a distinct

transaction stream from import of Porsche cars into UAE.

iii. The documents furnished by the Petitioner in the Petition [at Pgs.

499 to 506 of the Petition] do not in any manner indicate that Porsche

cars imported into UAE are sold to Respondent No.6 in India. Further,

the Petitioner itself has stated that the said imports in UAE are "for UAE

delivery".

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iv. For various reasons the import prices of cars imported in UAE are

not comparable to cars imported in India.

235. The Tribunal's decision in S.A. Futehally v. Commissioner of

Customs [at Pg. 104 to 115 of Petitioner's compilation of cases] is

distinguishable, and not relevant, inter alia for the following reasons -

i. In that case, it would appear that imports were made by end-

customers, and the appellant (S. U. Futehally) facilitated the imports by

the said customers [refer paras 2, 3 and 4 of the decision]. The price-

lists referred to in that case would relate to imports/ purchase by end

customers. Whereas, in the present facts, Respondent No.6 imports the

cars which are subsequently sold to dealers on wholesale basis for

further sale to end customers.

ii. In that case the imports were made during 1987-89 from Volkswagen

Germany. It is submitted that the availability of price lists referred in

respect of imports in 1987-89, cannot be the basis to assume existence

of price-lists for exports to India after a period of more than 20 years

(SVB Order was passed on 15th January, 2009) when exports to India

were under a distinct transaction structure.

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iii. From the record of the present case including material furnished by

the Petitioner), there is no reference to manufacturer's price list

available for export to India during the relevant period.

iv. Further, relevance of price-lists is limited to the period prior to the

amendment in section 14 of the Customs Act in 2007 as the said

section (prior to the amendment) provided that the value of goods shall

be "deemed to be the price at which such or like goods are ordinarily

sold, or offered for sale,. in the course of international trade." Whereas,

post-amendment, as per section 14 the value is to be the transaction

value i.e., the price actually paid or payable for goods exported to

India.

v. The facts of that case are also distinguishable as in that case there

was evidence regarding misdeclaration of engine capacity of imported

cars, and in relation to part payments of imports made by an entity in

Japan.

vi. Submissions as regards relevance of price-lists in the present context

are at para 4 of Respondent No.6's Written Submission.

236. The Petitioner's submissions that the SVB authorities have not

examined the pricing pattern of the imports by Respondent No.6 stands

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belied on perusal of para 5.1 and 5.2 of the SVB Order whereas the

sales pattern and price pattern are examined.

237. The Hon'ble Supreme Court's decision in Varsha Plastics Pvt. Ltd.

v. Union of India (supra) which was referred by the Petitioner to

support reference to foreign journals, is distinguishable as in the said

case the imports were made in July 2000, and the scope of section 14

of the Customs Act prior to its amendment in 2007 was examined.

Respondent No.7

238. The Respondent no. 7 has adopted the arguments made on

behalf of the Respondent no.6 and submitted that Respondent No.7 has

correctly followed the customs laws with respect to valuation of goods

imported by it.

239. With respect to para 29 of the Petition where the Petitioner has

enclosed Exhibit G to the Petition seeking to compare prices declared

by Respondent No. 7 before the Indian Customs Authorities vis-à-vis,

list price in Germany and UK, it is submitted that such a comparison is

meaningless because what is being compared in column 9 and 10 and

column 12 and 13 of the table at page 415, is declared assessable value

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and purported list price in Germany and UK. It is submitted that the list

price which is meant for ultimate customers and that to in different

geographies such as Germany and UK, cannot be compared with the

Customs Assessable Value in India as the assessable value will get

added with customs duties, various taxes, expenses, over-heads,

margins in India, which may become the basis to arrive at the list price

in a country of ultimate sale. Therefore, comparing list price and

assessable value that too in two different countries is like comparing

chalk to cheese.

240. Where the Petitioner has enclosed a few invoices issued by the

overseas BMW entity for delivery in UAE, it has been submitted that

these supplies are made by the overseas entity to certain customer in

UAE and that the Petitioner does not draw any analysis as to what

exactly his case or contention is, by enclosing such invoices. That the

sale by overseas BMW entity to a customer in UAE which is a different

geography cannot be compared. Entity in every country will have its

laws to be followed and other commercial parameters to be applied

such as quantity of offtake, model number, year of sale or features of

the car.

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241. With respect to the table which seeks to compare assessable

values in India with the FOB price of Right-Hand Drive (RHD) vehicle

published on the website, purportedly applicable in the UK, it is

submitted that the assessable value cannot be compared with the FOB

price or list price, which is meant for the ultimate customer, that too in

a different geography and further evidently of a model with a different

configuration i.e. RHD. That the difference between the assessable

value and the final list price published on the website meant for the

ultimate buyer comprises of various elements such as duties, taxes,

expenses, margins, overheads, and therefore again such a comparison

is as good as comparing apples with oranges.

242. With respect to comparison of the values declared in the two

Bills of Entry, it has been submitted on behalf of Respondent No.7 that

the value declared in the Bill of Entry No. 8750215 is where

Respondent No. 7 has imported themselves for subsequent sale through

dealer network, whereas the Bill of Entry No. 8863665, the goods were

sold on high seas basis and the Bill of Entry was filed by the importer in

India. That in the high sea sale transaction, the Bill of Entry is filed by

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the Purchaser in India which would include margin of Respondent No.7

justifying the difference in price between the two transactions. The

Petitioner has been comparing with incomparable.

243. The aspersions cast inter alia, upon Respondent No.7 with

respect to the alleged proceedings under the Acts other than the

Customs Act, it has been submitted that this appears to tarnish the

image of Respondent No.7 and is highly deprecated. That this appears

to be a feeble attempt to create a prejudice against Respondent No.7. It

is submitted that at para 5 at page no. 1179 of the Affidavit in Reply of

the DRI dated 21st December 2022, the DRI has stated instances in

which the Petitioner was proceeded against and that too, inter alia,

under the Customs Act. With regard to such antecedents of the

Petitioner, it is submitted that it is incorrect on the part of the Petitioner

to cast aspersions on Respondent No.7 presumably to misdirect this

Court into an area that is not relevant for the purpose of this Petition

and this itself creates doubts about the bona fide of the present

Petition.

244. The assessment of the Bills of Entry filed by the Respondent No.

7 are provisional and therefore, the allegation made by the Petitioner

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that there is undervaluation is anyway premature as the proper officer

has not even applied his mind.

245. Prima facie, there neither appears to be any misrepresentation or

suppression by the private parties nor any of the above submissions by

the Respondents appear to be controverted with any credible evidence

by or on behalf of the Petitioner.

246. On behalf of the Petitioner it has also been argued at the time of

the closing of the arguments that, no separate affidavit was filed on

behalf of the added Respondent No.8. However, the learned ASG has

submitted that he has made submissions on behalf of the Respondent

Statutory Authorities and therefore, we do not think that it would be

necessary for the Respondent No.8 to file a separate affidavit.

Moreover, it has been submitted on behalf of Respondent No.6, which

submissions have been adopted by Respondent No.7 that the

Petitioner's submission that DRI, Bangalore Zonal Unit, has not filed its

submissions and its affidavit in the present proceedings, is of no

relevance for the following reasons -

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i. The Petitioner had submitted its letter dated 09 th January, 2015 [Exh

A at Pg. 89 of Petition] to the Additional Director, DRI, Mumbai. In the

Writ Petition (Cri.) No. 20 of 2016 filed before the Hon'ble Supreme

Court, the Additional Director, DRI, Mumbai was Respondent no. 3 [at

Pg. 145 of the Petition], and the Hon'ble Supreme Court had vide its

Order dated 15th July 2016 [Exh F at Pg. 413-414 of the Petition]

stated:

- "If the Additional Director, DRI, Mumbai Zone is convinced that there

is credible information given by the Petitioner, he shall take appropriate

action, as advised in law."

ii. Further, the Petitioner had submitted its letters dated 9.9.2016 [Exh

B at Pg. 105 of the Petition] and 25.11.2016 [Exh C at Pg. 114 of the

Petition] to the Additional Director, DRI, Mumbai Zonal Unit.

iii. The Petitioner has, on the basis of the Hon'ble Supreme Court's said

order, and the above-referred communication with the DRI, Mumbai

Zonal Unit, premised the present Petition on the alleged inaction on the

part of the Respondent no. 3, i.e., the DRI.

iv. Where the Respondent no. 3 has, on examination of the material

furnished by the Petitioner, in its Reply [at para 5, Pg. 1236. Reply of

Respondent No.3] stated that the Petitioner "did not provide any

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concrete or prima facie evidence in support of his allegations of

undervaluation", and in its Additional Affidavit in Reply [at Pgs. 1283

and 1284 of Respondent No.3's Additional Affidavit in Reply] stated the

material to be "extremely generic information provided by the

Petitioner without a proper understanding of the Customs Valuation

Rules", and as the Bangalore Zonal Unit is only a sub-ordinate unit of

Respondent no. 3 (i.e., the DRI), the Petitioner's submissions that the

DRI, Bangalore Zonal Unit has not filed any separate affidavit, is of no

relevance.

247. Having heard the learned Counsel for the parties in detail and

having gone through the record, the matter needs to be looked into in

proper perspective.

248. The Petitioner, who claims to be an informer, is seeking to bring

before the Court information, which according to him, will be useful for

the Customs Authorities and the Director of Revenue Intelligence in

respect of import of cars in India. Once such a matter which involves

technical expertise, the matters of import duties, the pricing across

countries and various factors that go before international pricing, it is

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not possible for this Court in writ jurisdiction to arrive at determinative

findings. Rights of the Respondents to pursue their statutory remedies

also cannot be prejudiced.

249. We, therefore, called upon the statutory authorities to look into

the information. Such course of action was adopted by the Hon'ble

Supreme Court when the Petitioner brought before them certain

information. The Hon'ble Supreme Court did not directly issue any

specific direction to the private parties, but only called upon the

statutory authorities to look into the information brought forth by the

Petitioner. Under the exercise of writ jurisdiction, therefore, we have

chosen to adopt the same approach. Pursuant to information supplied

by the Petitioner in respect of the Respondent No. 5- Mercedes, the

Director of Revenue Intelligence and the Customs Authorities have

looked into the matter and have not found any violation. Even if they

do, the methodology and procedure under the governing statute will

have to be followed.

250. As regards Respondents No. 6 and 7, information was not

included in the Petition, but it was placed by way of additional

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affidavits. Since the information was placed before us for the first time,

we had directed the Customs Authorities and the Director of Revenue

Intelligence to examine the same. Both these departments, upon

examination, have reported that they have not found anything

objectionable in the conduct of the private Respondents. The Petitioner,

who claims to be an informer, has filed these proceedings himself

against the private Respondents and the statutory authorities. The

dispute between the private Respondent and the statutory authorities,

if any, will be resolved through the mechanism provided under the

governing statute. We are not inclined to grant any special status

higher than that of an informer like any other citizen to the Petitioner.

No case is made out of any collusion or malafides on the part of the

statutory authorities. Such collusion and malafides cannot be casually

intended and must be substantiated. Merely by raising suspicion about

the merits of the stand taken by the Director of Revenue Intelligence

and the Customs Authorities, directions cannot be issued against the

private Respondents and the Director of Revenue Intelligence. If

such casual assertions are accepted and the directions are given

on the basis that the Director of Revenue Intelligence and the

Customs Authorities, who are represented through the learned

Additional Solicitor General, have colluded with the private

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Respondents, then it would be a serious matter on the part of these

Respondents and their officers. Without any material, therefore, such

observations and directions cannot be issued.

251. From the arguments advanced before us and the pleadings filed,

and the chart shown that it is clear that valuation and pricing of these

cars is a complex matter and is governed by various factors.

Therefore, the Special Valuation Cell is also set up which consists of

experts. As regards the Petitioner's expertise in the subject, we have

not been shown anything to demonstrate the same. Having called

upon the Customs Authorities and the Director of Revenue Intelligence

to look into the information supplied by the Petitioner, the matter

cannot be taken forward in writ jurisdiction. Therefore, we have no

material before us to reach a conclusion that the Director of Revenue

Intelligence and the Customs Authorities have deliberately not looked

into the information supplied by the Petitioner. This Court cannot in a

writ jurisdiction give any direction in respect of future imports. The

Petitioner himself as an informer cannot abuse the status granted by

this Court to convert this litigation into a witch hunt against the private

Respondents. The Petitioner as a citizen has done his duty by bringing

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certain information to the notice of this Court and the authorities.

Thereafter, it is for the statutory authorities to take the matter forward.

In a writ jurisdiction, this Court cannot review the decision of the

executive but only the decision making process. The issues raised by

Mr.Shah would, therefore, be appropriately redressed before the

authorities and forum under the relevant statutes and not before a Writ

Court.

252. The matter also needs to be looked in another perspective. As

regards the valuation of these imported vehicles is concerned, there is

dispute. We are informed that some proceedings are pending before

the Special Valuation Branch. Therefore, issuance of writ as sought for

by the Petitioner would directly impact the pending proceedings and

there is no reason as to why such course of action be adopted. Even

otherwise, it is always open to any citizen including the Petitioner, if

any credible material is found in future, to approach these authorities.

This position is also made clear by the learned Additional Solicitor

General. According to us, on the basis of material supplied by the

Petitioner, substantial investigation has taken place, substantial judicial

time has been spent upon the same and the proceedings cannot go on

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merely because the Petitioner insists that they should go on. Therefore,

we have reached the stage where the proceedings need to be

terminated.

253. Writ Petition is accordingly dismissed. The connected Interim

Application also to accordingly to stand dismissed. No order as to costs.

254. We make it clear that we have not expressed any opinion on the

merits of the claims and counter arguments made on behalf of the

parties and keep all the contentions open to be considered in

accordance with law by the Adjudicating Authorities before whom the

challenges / appeals may be pending or proposed to be filed.

[ABHAY AHUJA J.] [NITIN JAMDAR J.] ARTI VILAS KHATATE

Digitally signed by ARTI VILAS KHATATE Date: 2024.07.25 17:30:17 +0530

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