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Cus – Assessee had not been placed on notice about availability of contemporaneous import prices or details pertaining to those imports – principles of natural justice violated: CESTAT

2019-TIOL-2491-CESTAT-MUM

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH, MUMBAI

Customs Appeal No. 812 of 2011

Arising out of Order-in-Appeal No: 398(Gr.IIA)/2011(JNCH)-IMP 336, Dated: 08.09.2011
Passed by the Commissioner of Customs (Appeals), Nhava Sheva, Mumbai- II

Date of Hearing: 28.11.2018
Date of Decision: 28.11.2018

ASIAN PAINTS LTD
ASIAN PAINTS HOUSE, 6A SHANTI NAGAR, VAKOLA
SANTACRUZ (E), MUMBAI – 400055

Vs

COMMISSIONER OF CUSTOMS (IMPORTS)
JNCH, NHAVA SHEVA, TALUKA URAN, DIST: RAIGAD-400707

Appellant Rep by: Shri Raj Mohan, Manager – Taxation
Respondent Rep by: Ms PV Sekhar, Joint Commissioner (AR)

CORAM: C J Mathew, Member (T)
Suvendu Kumar Pati, Member (J)

Cus – Appeal lies against impugned order which has upheld the order of original authority – The original authority had been requested for an order of assessment, in imports effected against ten bills of entry, on clearance of ‘titanium dioxide CR-50 grade’ after rejecting declared value of US $1940 per metric tonne, evidenced purchase order for substitution with contemporaneous price of US $ 2100 per metric tonne and, in the absence of any satisfactory response, adopted for assessment – It is found from the decision of Tribunal in Vyapar Industries Ltd that the proceedings therein had been invalidated for non-availability of contemporaneous import and price when proceedings were initiated – The gap in evidence for enhancement of value was made available only subsequent to issue of O-I-O – Moreover, there is no reference to said contemporaneous import price in discussion and findings which would have sufficed to demonstrate that the importer had been put on notice about the said price – Therefore, proceedings for re-determination of assessable value is not in compliance with the principles of natural justice – The assessee had not been placed on notice about the availability of contemporaneous import prices or the details pertaining to those imports – An assessment order is no substitute for SCN or adequate for compliance with the principles of natural justice – Therefore, the impugned order is set aside and matter is remanded back to the original authority to furnish the copies of documents and other evidence to enable a proper defence of allegation of mis-declaration: CESTAT

Matter remanded

Case law cited:

Vyapar Industries Ltd v. Commissioner of Customs (I), Mumbai [2016 (343) ELT 825 (Tri.-Mumbai)]… Para 4

FINAL ORDER NO. A/88458/2018

Per: C J Mathew:

Appeal lies against order-in-appeal no. 398(Gr.IIA)/2011 (JNCH)-IMP 336 dated 8th September 2011 of Commissioner of Customs (Appeals), Nhava Sheva, Mumbai- II which has upheld the order of the original authority. It is seen that the original authority had been requested for an order of assessment, in imports effected against ten bills of entry, on clearance of ‘titanium dioxide CR-50 grade’ after rejecting declared value of US $1940 per metric tonne, evidenced purchase order dated 31st August 2009 for substitution with contemporaneous price of US $ 2100 per metric tonne and, in the absence of any satisfactory response, adopted for assessment. Furthermore, to justify the revision, it was also held that the goods were subject to fluctuation in price and the value contracted six months prior to the date of import was not reflective of the contemporaneous value and, hence, rule 4(1)(A) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 was invokable.

2. On a perusal of the impugned order, we find that the submission of the appellant before the first appellate authority of lack of evidence for adoption of an enhanced value was not accepted owing to issue of corrigendum on 17th August, 2010, almost a month and half after the date of order-in-original to insert the bill of entry no. 856317/16.01.2010 of M/s DTC India Ltd in discussion as the basis of the findings.

3. We have heard the representative of appellant and Learned Authorised Representative.

4. We find from the decision of the Tribunal, as cited by the representative of the appellant, in Vyapar Industries Ltd v. Commissioner of Customs (I), Mumbai [2016 (343) ELT 825 (Tri.-Mumbai)] the proceedings therein had been invalidated for non-availability of contemporaneous import and price when proceedings were initiated. We find in the present case that the gap in the evidence for the enhancement of value was made available only subsequent to issue of order-in-original. Moreover, there is no reference to the said contemporaneous import price in the discussion and findings which would have sufficed to demonstrate that the importer had been put on notice about the said price. Therefore, it would appear that proceedings for re-determination of the assessable value is not in compliance with the principles of natural justice.

5. The appellant herein had not been placed on notice about the availability of contemporaneous import prices or the details pertaining to those imports. An assessment order is no substitute for show cause notice or adequate for compliance with the principles of natural justice. Therefore, we set aside the impugned order and remand the matter back to the original authority to furnish the copies of the documents and other evidence to enable a proper defence of the allegation of mis-declaration.

6. Accordingly, the appeal is allowed by way of remand.

(Pronounced in open court)

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