By TIOL News Service

CHANDIGARH, MAY 31, 2018: THE appellants imported Heavy Melting Scrap and accordingly filed bills of entry at the declared value of USD 428 per MT in the case of M/s. Kisco Casting Limited and US$ 370 per MT in the case of M/s. Dynamic Casting.

In the case of M/s. Kisco Casting Limited , it was observed that the same were cut pieces of Iron and Steel having length more than as prescribed in ISRI code in respect of HMS category. Accordingly, a view was formed that the goods were re-rollable material of iron and steel and not HMS, as declared by the appellant.

In the case of M/s. Dynamic Casting , the goods were found to contain besides 20% of HMS, about 80% re-rollable scrap.

Revenue enhanced the value of goods in both the cases on the basis of DoV data of similar goods. Both the appellants paid the duty on the higher assessable value and cleared the goods.

Commissioner (Appeals) order observed that inasmuch as the appellant accepted the enhanced value and has cleared the goods on payment of duty on the higher assessable value, without challenging the same, they cannot now turn around and question the re-determination of the transaction value.

The appellants are before the CESTAT.

The Member (Judicial) inter alia observed –

+ The fact that the assessed bills of entries were challenged by the appellant before Commissioner (Appeals), by way of filing appeals, is itself indicative of the fact that the appellants were not satisfied with such enhancement and have exercised their right of appeal provided under the statute.

+ Filing of appeal by itself is a protest.

+ Apart from expressing doubt about the correctness of the transaction value, in the present case, the Revenue, upon whom onus is placed, has not produced any evidence to reflect upon the inaccuracy of the transaction value. In such a scenario, we are of the view that transaction value has to be adopted as the correct assessable value.

+ It has been held in number of decisions that enhancement of value cannot be done on the basis of DoV data etc. without first rejecting the transaction value or without adducing any evidence of contemporaneous imports.

+ Inasmuch as there is no evidence in the present appeals in support of Revenue's allegations, we are of the view that the impugned orders are not sustainable.

All the appeals were allowed with consequential relief.

The Member (Technical) agreed with the order of the Member(J) to the extent of two appeals C/60004-60005/2016 wherein mis-declaration was not accepted by the importer but recorded a separate order in respect of the other three appeals wherein the mis-declaration was accepted by the importer vide their letters dated 13.06.2013 and 19.06.2014.

In respect of the said three appeals, C/60002, 60003, 60006/2016, the Member (T) held that the application of higher rate of duty and enhancement of the value as per DOV data/contemporaneous import based assessment by the adjudicating authority is correct and the said three appeals were dismissed.

The matter, therefore, came to be referred to the third Member.

After hearing both sides, the Member (T) observed –

"15. I find that in Appeal nos. C/60002/2016 and C/60006/2016, the transaction value has not been rejected by Revenue, therefore, in those two appeals, I agree with the view expressed by Member (Judicial). Insofaras the Appeal No. C/60003/2016 is concerned, I find that the appellant had given consent for enhancement of value, therefore, I agree with the view expressed by Brother Member (Technical)."

The Majority order, therefore, is -

"All the appeals except appeal No. C/60003/2016 are allowed and the said appeal no. C/60003 of 2016 is rejected."

(See 2018-TIOL-1667-CESTAT-CHD)