Case Law Details
Hindalco Industries Ltd Vs C.C.-Mundra (CESTAT Ahmedabad)
Conclusion: Assessee-company had not accepted the enhancement of the value as they had requested for passing a speaking order in terms of Section 17(5) of the Customs Act, 1962. Further viewed that Commissioner (Appeals) had not adduced any evidence in support of his finding that assessee had accepted the enhancement of the value of the goods, therefore, assessee should be given sufficient opportunity for presenting their defence and also personal hearing be given before passing a speaking order.
Held: Assessee filed an appeal against the order of the Commissioner (Appeals) whereby, the assessment of bills of entry enhancing the value of the goods namely copper scrap based on LME price had been upheld. Assessee submitted that the appeal was rejected not on merit but mainly on the ground that assessee had accepted the enhancement of the price through assessment of bills of entry therefore, assessee could not file appeal before the Commissioner (Appeals). Assessee had not accepted the enhancement of the value on the contrary they had not accepted the enhancement of the value by giving the letter to the Assistant/Deputy Commissioner of Customs, Mundra and also requested for passing a speaking order in terms of Section 17(5) of the Customs Act, 1962 therefore, the ground on which the Commissioner (Appeals) had passed order was baseless and without any evidence. It was held that assessee had not accepted the enhancement of the value, moreover, they had requested for passing a speaking order in terms of Section 17(5) of the Customs Act, 1962. Commissioner (Appeals)’s finding that assessee had accepted the enhancement of value was absolutely contrary to the facts in the above letter. Moreover, the Commissioner (Appeals) had not adduced any evidence in support of his finding that assessee had accepted the enhancement of the value of the goods. As per the principles of natural justice, AO was required to pass a speaking order, considering all the submissions to be made by assessee. Accordingly, the matter was remanded to the assessing authority for passing a speaking order. Needless to say that assessee should be given sufficient opportunity for presenting their defence and also personal hearing be given before passing a speaking order.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
These appeals are directed against order of the Commissioner Appeals) whereby, the assessment of bills of entry enhancing the value of the goods namely copper scrap on the basis of LME price has been upheld.
02. Shri Manish Jain, learned counsel appearing on behalf of the appellant at the outset submits that the learned counsel has rejected the appeal not on merit but mainly on the ground that the appellant have accepted the enhancement of the price through assessment of bills of entry therefore, the appellant cannot file appeal before the Commissioner (Appeals). It is his submission that the appellant have not accepted the enhancement of the value on the contrary they have not accepted the enhancement of the value by giving the letter to the Assistant/Deputy Commissioner of Customs, Mundra and also requested for passing a speaking order in terms of Section 17(5) of the Customs Act, 1962 therefore, the ground on which the Commissioner (Appeals) has passed order is baseless and without any evidence.
2.1 Without prejudice, he further submits that against the self assessed bill of entry, the appeal can be filed under Section 17(5) of the Customs Act, 1962. He placed reliance on the following judgments:-
• ITC Limited Vs. Commissioner of Central Excise– 2019 (9) TMI 802-SC
• NEYYELI LIGNITE CORPORATION INDIA LTD.-2022 (4) TMI 1374- Madras High Court
• BRIGHTPOINT INDIA PRIVATE LIMITED- 2022 (97) TMI 882- CESTAT Ahmedabad
2.2 He further submits that the value for the purpose of customs duty shall be the transaction value i.e. the price actually paid or payable for the goods exported to India hence, in terms of Section 14(1) of the act, transaction value is to be accepted. He further submits that the LME price cannot be relied upon to reject the declared value because the LME bulletin gives the indicative price at which the goods are traded in the international trade. He placed reliance on the following judgments:-
- PAWAN GOEL- 2001 (135) ELT 1425 (Tri.)
- USHPAK METAL CORPORATION- 2014 (312) ELT 381 (Tri.-Ahmd.)
- GURU RAJENDRA METALLOYS INDIA PRIVATE LIMITED– 2020 (374) E.L.T. 617 (Tri.-Ahmd)
- TEEKAY FLOWFLEX PVT. LTD.- 2017 (357) ELT 977 (Tri.-Mumbai)
It is his submission that in absence of evidence to show the remittance about the invoice value, foreign supplier, declared value cannot be rejected. Without prejudice to the above, he also submits that advance license cannot be debited at enhanced value when there is no evidence that the appellants have paid additional consideration to the foreign supplier. Reliance in this regard is placed on the following decisions:-
- UMA SONS- 1996 (88) ELT 540 (Tri.)
- MANJUSHREE MINERALS LTD.- 1993 (68) E.L.T. 273 (Cal.)
03.shri Tara Prakash, learned Deputy Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
04. We have carefully considered the submissions made by both the sides and perused the records. We find that the appeal can be disposed of only on the threshold point that whether the appellant have accepted the enhancement of the value or otherwise without going into other issues. We find that the learned Commissioner (Appeals) rejected the appeal only on the ground that the appellant during assessment of bill of entry have accepted the enhancement of the value of imported scrap. We find that contrary to this, the appellant invited our attention to the letter written by them to the assessing authority, one of the sample letter is scanned below:-
From the above letter, it is clear that the appellant have not accepted the enhancement of the value, moreover, they have requested for passing a speaking order in terms of Section 17(5) of the Customs Act, 1962. The Commissioner (Appeals)’s finding that the appellant have accepted the enhancement of value is absolutely contrary to the facts in the above letter. Moreover, the Commissioner (Appeals) has not adduced any evidence in support of his finding that the appellant have accepted the enhancement of the value of the goods. In this position, we are of the view that as per the principles of natural justice, the assessing authority is required to pass a speaking order, considering all the submissions to be made by the appellant.
4.1Accordingly, we set aside the impugned orders and remand the matter to the assessing authority for passing a speaking order. Needless to say that the appellant shall be given sufficient opportunity for presenting their defence and also personal hearing be given before passing a speaking order.
05. The appeals are allowed by way of remand to the assessing officer.
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