Commissioner of Customs Vs Namo Alloys Pvt. Ltd. (CESTAT Chandigarh)
CESTAT Chandigarh held that once the importer voluntary accepted the enhancement then the importer is estopped from challenging the same subsequently.
Facts- The respondent imported Aluminium Scrap by filing 35 bills of entries at ICD Palwal and self-assessed the duty. The Bills of entries were assessed by the Deputy/Assistant Commissioner of Customs, ICD Palwal at higher value than the declared value which was voluntarily accepted by the respondent and did not ask for any speaking order and paid enhanced duty voluntarily without any protest. However, later on, the importer challenged the value assessment and filed appeals before the Commissioner of Customs (Appeals), New Delhi who vide the impugned order set aside the re-assessment of goods at enhanced value and restored the self-assessment at the declared value and allowed the appeals filed by the importer.
Conclusion- Held that Tribunal in the case of Commissioner of Customs (Import), ICD, TKD, New Delhi vs. M/s Sodagar Knitwear Pvt. Ltd. cited has held that once the importer voluntary accepted the enhancement then he is precluded from challenging the same. This judgement of the Tribunal has been upheld by the Hon’ble Apex Court.
FULL TEXT OF THE CESTAT CHANDIGARH ORDER
These 35 Appeals have been filed by the Revenue against the common impugned order dated 19.03.2020 passed by the Commissioner of Customs, New Delhi whereby the Commissioner (Appeals) has allowed the appeals of the respondent and directed the lower authorities to re-assess the duties at declared value.
2. Briefly the facts of the present case are that the respondent imported Aluminium Scrap by filing 35 bills of entries at ICD Palwal and self-assessed the duty. The Bills of entries were assessed by the Deputy/Assistant Commissioner of Customs, ICD Palwal at higher value than the declared value which was voluntarily accepted by the respondent and did not ask for any speaking order and paid enhanced duty voluntarily without any protest. However, later on, the importer challenged the value assessment and filed appeals before the Commissioner of Customs (Appeals), New Delhi who vide the impugned order set aside the re-assessment of goods at enhanced value and restored the self-assessment at the declared value and allowed the appeals filed by the importer.
3. Heard the parties and perused the case records.
4. Ld. DRs appearing for the Revenue submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and evidence on record and without considering the law laid down by the Tribunal on identical issues. He further submitted that the Ld. Commissioner (Appeals) did not appreciate that the importer in this case after seeing the contemporaneous import data (prevailing during that period) has agreed to redetermination of value in their reply to query in EDI system and voluntarily forfeited their right of show cause notice and opportunity of personal hearing. He further submits that as per his acceptance, the value was enhanced by the department and duty was discharged by the importer without showing any protest up to the date of Out of Charge. He also submits that nobody can stop the importer of its right to protest even if the clearance was being taken to save the demurrage charges, which the importer did not avail in the present case. The protest, wherever shown by the Importer at appeal stage is post clearance from which it cannot be concluded that the payment of duty by the importer was under protest. He also submits that the protest if any at the appellate stage cannot be considered because the duty was not paid under protest.
5. He further submits that the Ld. Commissioner (Appeals) has failed to appreciate that in several decisions where the courts and Tribunals have held that a written admission before an Assessing Officer of Customs is an admissible evidence and in the present case also, the importer has voluntarily accepted the value loading and has requested that he doesn’t require show cause notice and Personal hearing in the said letter which is available on record of the appeal paper book.
6. Ld. DR further submits that an identical issue has been considered by the Division Bench of this Tribunal in the case of Commissioner of Customs, Delhi vs. M/s Hanuman Prasad & Sons reported in 2020 (12) TMI 1092-CESTAT NEW DELHI wherein also the Commissioner has allowed the appeal of the importer and set-aside the enhancement but the Tribunal after considering all the provisions of Customs Act, 1962 relating to valuation and Valuation Rules, 2007 and the voluntary acceptance of the enhanced value by the importer, allowed the appeals of the department.
7. Ld. DR took us through the findings of the Division Bench in the case of M/s Hanuman Prasad & Sons cited (supra). He submits that subsequent to the passing of the judgement in the case of M/s Hanuman Prasad & Sons cited (supra), another Division Bench of the Principal Bench, New Delhi of the Tribunal in the case of M/s Sumridhi Aluminium (P) Ltd. vs. Commissioner of Customs, New Delhi vide Final Order No. 51191-51282 of 2023 dated 13.09.2023 again examined all the rules relating to valuation and by relying upon the decision in the case of M/s Hanuman Prasad & Sons cited (supra) and other decisions dismissed the appeals of the importer.
8. Ld. DR also relied upon the following decisions in support of his submissions that once the importer has voluntarily accepted the enhanced value then the department is not required to pass a speaking order as provided in Section 17 sub-section 5 of the Customs Act, 1962.
