-A MIS. RADHEY SHYAM RATANLAL & ANR. v. COMMNR. OF CUSTOMS (ADJUDICATION), MUMBAI

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-A MIS. RADHEY SHYAM RATANLAL & ANR. v. .... COMMNR. OF CUSTOMS (ADJUDICATION), MUMBAI (Civil Appeal No. 2700 of 2006)

MAY 6, 2009 B

The question for consideration in the present appeal was as regards determination of value of imported goods; i.e. whether the price of goods at the time df, computation should be the deciding factor. or it should be the price, agreed upon by the parties.

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 955 (ADJUDICATION}, MUMBAI -.,

which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. '.'"- Under Rule 5, it is inter alia provided that the value of imported goods shall be the transaction value of identical goods sold for export to India and imported on or about the same time, good being valued subject to provisions of rule 3. It is also provided in the said rule that in applying the said rule, the transaction value of identical goods and sale at the same commercial level and substantially of the same quantity, would be used to determine the value of the imported goods. [Para 20] [966- c . A-E]

- 2. In present case the appellant although claimed a transaction value, but such value could not be supported by production of the original contract or the invoices relating to procurement of cloves to the appellant under D the ten Bills of Entry in question. The said documents " were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the t parties and it is merely a certificate issued by the E Company whose nature of business is primarily dealing • with sport goods and not cloves. There is also a reference of the document on record particularly the relevant bill of ~

" lading which indicates import of the cloves at the price of US Dollars 5600 PMT. It has also come in evidence that F 9.5648 MTs cloves of Indonesian origin shipped from Singapore under bill of entry dated 8.5.2001 were bought at the rate of US Dollars 5500. The said consignment was shipped on 25.2.2001 as per the bill of lading. Another consignment of 9.300 MTs of cloves of Comoros origin G _, was also imported at the same unit price. A table of imports made by the appellants in the Bill of Entry in question is placed on record. The evidence therefore which exist on record clearly support the findings and the conclusions arrived at by the Commissioner of Customs H

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A '-- ... (Adjudication), and also by the Tribunal. The findings and conclusions cannot be said to be perverse. They are based on cogent reasons which are found to be forceful -- and reasonable. [Para 21 and 23] [966-F-G; 967-E-H]

B 3. It is, therefore, conclusively proved that the Department correctly imposed proper assessment value on the goods in question imported by the appellant. The said value for the purpose of assessment of the goods had been correctly arrived at in accordance with the c provisions of Customs Acts, 1962 and Customs Valuation Rules, 1988 framed thereunder particularly in .- I

accordance with Rule 5 of the Valuation Rules. [Para 24] [968-A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. - D 2700 of 2006.

From the Judgment & Order dated 8.3.2006 of the Customs Excise, Service Tax Appellate Tribunal; New Delhi in Appeal Nos. 168 and 169 of 2004. E Rajiv Dutta, M.F. Humayunisa Kumar, Dushyant Singh and \

-; R. Nedumaran for the Appellants.

A. Mariyaputham, B. Sunita Rao, Vimal Dubey and Anil ... Katiyar for the Respondents. >-

F The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. · 1. The present Civil Appeal is filed by the appellant under Section 130E of the Customs Act, 1962. The appeal is directed against the G impugned judgment and order dated 8.3.2006 passed by the ~

._ Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter 'the Tribunal' whereby and whereunder the adjudication order dated 31.12.2003 passed by the Commissioner of Customs (Adjudication), Mumbai was upheld ....... H and whereby the Tribunal dismissed both the appeals preferred

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 957 (ADJUDICATION), MUMBAI [DR. MUKUNDAKAM SHARMA, J.]

by the appellants holding that the appellant was fully aware and was made known about the materials placed C'3fore the ... authority and he had full opportunity to deal with the documents submitted by the witness. The Tribunal upheld and confirmed the reasoning and the conclusions of the Commissioner for passing the order dated 31.12.2003. By the aforesaid order passed by the Tribunal, a fine of Rs. 5 lacs in lieu of confiscation of the goods and penalty of Rs. 10 lacs was imposed on the appellant firm, and also a penalty of Rs. 5 lacs imposed on Ratanlal under the provision of Section 112(a) of the Customs Act imposed by the Commissioner of Customs (Adjudication) c was upheld.

- 2. The entire proceeding arises out of a contract of importation of cloves of the bulk quantity of 300 MTs at US Dollars 2600 PMT CIF, Mumbai. It was alleged that the appellants herein entered into a contract with Mis. Ketan D Trading Company, Singapore on 23.11.2000 for import ~of If cloves. The goods were described as 'cloves-Zanzibar/ Indonesia' meaning thereby cloves of Zanzibar/Indonesian origin of the bulk quantity of 300 MTs at US Dollars 2600 PMT CIF Mumbai. E

3. The aforesaid contract dated 23.11.2000 for the above- mentioned quantity of cloves was registered with the Customs

- • Department by the appellants in the course of which three bills of entry were filed by appellants for clearance of part shipment declaring the contract price as the invoice price. F

Again, for further imports seven more bills of entry were filed by the appellants in terms of the direction of the respondent. The appellants paid the .Price at the enhanced price. G

4. The Customs House initiated an investigation into the import of cloves included in all ten bills of entry. The Customs Department alleged that during the investigation. it was . revealed that the aforesaid goods were invoiced by Mis. Ketan H

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A Trading Co., Singapore at Unit Price of US Dollars 2600 PMT '\;'C ' CIF, Mumbai although the prevailing international price of cloves .1- during the relevant period (in the month of January-February, I 2001) was around US Dollars 5500 which reached to US Dollars 6500 PMT by the end of Febn~ary-and beginning of r- 1/

B March, 2001 and that the cloves were not traded at a price less ' than US Dollars 4200 PMT during the year 2000 except in the beginning of January, 2000. .

5. It was also alleged that in order to avoid deterioration c of goods, the appellants as directed by the Department, deposited the amount towards enhanced price. The Bill of Entry \ ~

was provisionally a.>sessed and out of charge order under Section 4 7 of the Act was passed. After that the goods were stored in a warehouse at Vashi in its general section. --l

> ~

D 6. It was further alleged that the imports made by M/s. Spices Trading Corporation of India established that cloves of Indonesian and Comoros origin were shipped from Singapore at the rate of US Dollars 5500 PMT (CIF) to Nhava Bills of Entry ·.!!fated 10.5.2001 and 8.5.2001. The case of the Customs is also E that Bulletin of Spices Market published by the trade information services of Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the prices of cloves

F were ranging from US Dollars 4490 to US Dollars 6010 between 17.11.2000 to 23.2.2001. • •

7Copy pinpoint7. Further evidence was also collected indicating that as per the Public Ledger, an international publication of repute, the CIF European Port prices of cloves were ranging from US Dollars 4400 to US Dollars 6300 between 6.11.2000 and 26.3.2001. It was also indicated that several of the importers G admitted that the cloves were imported by them at various ~~ prices ranging between US Dollars 5050 to US Dollars 5500 during the aforementioned relevant period. During the course of investigation, the partner of the appellant was also ~· questioned. In that process, he admitted that the original H

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 959 (ADJUDICATION), MUMBAI [DR. MUKUNDAKAM SHARMA, J.] ? contract was with Mis. Ketan Trading Co., Singapore for supply A ... of 300 MTs and il was signed in November, 2UOO and that he - was having only a photocopy of the said contract. He stated that the international market price of cloves in the beginning of ' 2001 was only US Dollars 2900 to US Dollars 3000 and that (

• in February, March-April the price went up to US Dollars 5000 B depending upon the quality. As regards the invoice bearing No. 624/2K- 01 dated 7.2.2001 issued Mis. IJIM ASIA in the name .~ of Mis. Ketan Trading Co. showing consignment of 24.538 MTs, of cloves at the rate of US Dollars 5600, he stated that one consignment was imported by him under bill of entry dated c 24.2.2001, which was the same consignment mentioned and shown against invoice dated 7.2.2001. r•

8Copy pinpoint8. It was also stated that while seeking clearance the quantity declared was 23.488 MTs, but on actual examination the consignment was found to be in excess by 1.05 MTs " .•j confirming the correctness of the quantity mentioned as per invoice dated 7.2.2001 i.e. 24.538 MTs.

9Copy pinpoint9. It was therefore submitted by the department that there is foolproof evidence to suggest undervaluation in the import of cloves by the appellant with intent to evade customs duty. A Show Cause Notice was issued by the Department on • 27.2.200.2 to which reply was also received. Appellants -< requested for supply of certain documents. The aforesaid request was acceded to by the Department and personal hearing was also given to the appellants. The appellants also

- filed their written submission. Thereafter, an order was passed on 13.2.2003 by the Commissioner of Customs (Adjudication) holding that the value for the purpose of assessment of tbe. cloves imported under four Bills of Entry should be US Dollars G ~ 5500 PMT and for the balance six Bills of Entry, the value for the assessment of the cloves imported by the Appellants should be @US$ 5600 PMT (CIF).

10Copy pinpoint10. Aggrieved by the abovesaid order dated 31.12.2003, ....' H

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A the Appellant Company preferred an Appeal in the Tribunal on \. various grounds. ~~

11Copy pinpoint11. Apart from the aforesaid appeal filed by the appellant, another appeal No. 169 of 2004 was preferred by the partner of the appellant Company in the same Tribunal. The Tribunal B heard the parties and thereafter by an Order dated 8.3.2006 dismissed both the appeals filed by the appellant and its partner. ,;it.

12Copy pinpoint12. Still aggrieved, the present appeal is filed by the ' c appellant challenging the orders passed by the Adjudicating Authority as also by the Tribunal.

13Copy pinpoint13. Mr. Rajiv Dutta, the learned senior counsel appearing ~;

for the appellant submitted before us that the transaction value which the appellant could establish by producing· relevant )- •, documents should have been accepted by the respondent. It ·')

was also submitted by him that the transaction value was based \._

on the price agreed upon which was contractual in nature, and '~ therefore, the said price should have been accepted as value of the goods and having not done so, the impugned orders are required to be set aside. His further submission was that, the Public Ledger or Weekly Bulletin should not have been considered as of any evidentiary value in the matter under consideration. JI> ,,. F 14. The aforesaid submission of the counsel appearing for the appellant was however refuted by the learned counsel appearing for the Commissioner of Customs. His submission >- was that ~he appellant could not produce the original contract said to have been entered into between Mis. Ketan Trading G Company and the appellant in which the price of the goods was allegedly agreed upon at US Dollars 2600 PMT. He pointed "'- ·~· out that the document dated 23.11.2000 of Mis. Ketan Trading Co. is not a contract and therefore no reliance could and should be placed on the said document to arrive at a finding that in fact the appellant had supplied the aforesaid cloves for Ketan , H --

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 961 • (ADJUDICATION), MUMBAI [DR. MUKUNDAKAM SHARMA, J.] ) Trading Company at US Dollars 2600 PMT. He also submitted A that the findings and conclusions arrived at by the ..... ----J Commissioner of Customs (Adjudication) as well as by the Tribunal are findings of fact and the same should not be t interfered with by this Court. B

15. In the light of the aforesaid submissions we have perused the documents on record. A perusal of the relevant ~ documents would indicate that the issue that arises for our consideration is as to how the value of the goods, in question, was to be computed. In other words whether the price of goods at the time of computation should be the "deciding fac;:tor in c arriving at the value of the goods or it is the price agreed upon by the parties.

16. In order to substantiate the claims and the rejection of the said claims, reference was made to the provisions of D ~-

~ Sections 14(1) (a) of the Customs Act, 1962 and Rule 4 and Rule 5 and Rule 1OA of the Customs Valuation Rules, 1988.

The said provisions being relevant, material part thereof are extracted herein below. E Section 14: Valuation of goods. -- (1)For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law l for the time being in force whereunder a duty of customs ' is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be the price at F which such of 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, where - ), G (a) the seller and the buyer have no interest in the business of each other; or

(b) one of them has no interest in the business of the other, H

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A and the price is the sole consideration for the sale or offer for sale

Provided that such price shall be calculated with reference ._ to the rate of exchange as in force on the date on which a I- bill of entry is presented under section 46, or a shipping B ·bill or bill of export, as the case may be, is presented under section so;

1(A) Subject to the provisions of sub-section ( 1), the price referred to in that sub-section in respect of imported goods c shall be determined in accordance with the rules made in this behalf.

o, The relevant Rules are Rules 4, 5 and 1OA qf the Customs ,... "'.>'.

Valuation Rules, 1988, which are reproduced hereunder:

Rule 4. Transaction value• .;.;. (1) The transaction value E of imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of Rule 9 of these rules. y

(2) The transaction value of imported goods under sub- rule F (1) above shall be accepted: ... Provided that -

(a) the sale is in the ordinary course of trade under fully competitive conditions; •· G ,.... ' (b) the sale does not involve any abnormal discount or reduction from the ordinary competitive price;

(c) the sale does not involve special discounts limited to H exclusive agents;

)- I

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 963 ' . (ADJUDICATION), MUMBAI [DR. MUKUNDAKAM SHARMA, J.] ' - )< (d) objective and quantifiable data exist with regard to the A adjustm_ents required to be made, under the provisions of rule 9, to the transaction value.

- (e) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which B (i) are imposed or required by law or by the public authorities in India; or ""-- (ii) limit the geographical area in which the goods may be • resold; or c ---.. (iii) do not substantially affect the value of the goods;

(f) the sale or price is not subject to same condition or consideration for which a value cannot be determined in respect of the goods being valued; D y

~ (g) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue. directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions E of Rule 9 of these rules; and · =- (h) the buyer and seller are not related, or where the buyer \ and seller are related, that transaction value is acceptable I for customs purposes under the provisions of sub-rule (3) below. F

Rule 5. Transaction value of identical goods. -- (1 )(a) G ... Subject to the provisions of Rule 3 of these rules, the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about .the same time as the goods being valued. H

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 965 (ADJUDICATION), MUMBAI [DR. MUKUNDAKAM SHARMA, J.] -, ). by M/s. Ketan Trading Co. The said letter is a certificate issued by Mis. Ketan Trading Company in favour of the appellant I confirming that they had sold to the appellant, cloves of Zanzibar, Indonesia and Cameroon origin at US Dollars 2600 PMT CIF, Mumbai of a quantity of about 300 MTs. A bare perusal of the said document would indicate that the same is not a contract which was entered upon between the parties and it is merely a certificate issued by M/s. Ketan Trading Co. in favour of the appellant.

19. We have extracted hereinbefore, the relevant part of the provision of Section 14 (1) (a) of the Customs Act and the c relevant part of Rule 4, Rule 5 and Rule 1OA of the Customs Valuation Rules. Section 14 of the Act relates to valuation of goods for the purpose of assessment and inter alia provides that the value of any goods chargeable to duty of customs would be deemed to be the price at which such or like goods are D "..f ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other or one of them has no interest in the business of the other and the price is the sole consideration for the sale or offer for sale. By inserting sub-Section (1A) of Section 14 which was inserted with effect from 16.8.1988, it was provided that subject ' to the provisions of sub-Section (1) of Section 14, the price ' referred to in the sub-Section in respect of imported goods would be determined in accordance with the rules made in this behalf.

20. Further, Rule 4 deals with the transaction value which is required to b~ determined under aforesaid rule. Under Rule 4 of the Valuation Rules, the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India. In accordance with the provisions of Rule 9, such transaction value is required to be accepted , subject to the proviso to sub-Rule (2). But the expression used · in Section 14 and Rule 4 clearly indicates that the transaction I H

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~

";I.

A value of imported goods would be accepted as provided by sub-Rule (2) of Rule 4 but such value is always subject to the provision of sub-Section (1) of Section 14 in view of the opening expression used in sub-Section (1A) of Section 14 which opens with the expression "subject to the provisions of B sub-Section (1) of Section 14." Therefore, the provisions of sub- Section (1) of Section 14 would prevail when the transaction value required to be determined u·nder Rule 4 does not reflect .....;;. the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. c There cannot be any dispute with regard to said interpretation that it is the provision which will always prevail. In other words the deemed value contemplated under Section 14(1) would prevail when the price declared does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of iryiportation. Under Rule 5, D x it is inter alia prgvided that the value of imported gooas--s·haU __ t-. be the transaction value of identical goods sold for export to India and imported on or about the same time, good being valued subject to provisions of Rule 3. It is also provided in the said Rule that in applying the said rule the transaction value of E identical goods and sale at the same commercial level and substantially of the same quantity, would be used to determine the value of the imported goods. y

21. We are required to apply the aforesaid provision to the ' F facts and circumstances of the present case and when done so it would appear that the appellant although claimed a transaction value, bllt such value could not be supported by production of the original contract or the invo.ices relating to procurement of cloves to the appellant under the ten Bills of G Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the parties and it is merely a certificate issued by M/s. Ketan Trading Co. H

RADHEY SHYAM RATANLAL v. COMMNR. OF CUSTOMS 967 (ADJUDICATION), MUMBAI [DR. MUKUNDAKAM SHARMA, J.] ,. 22. The respondent department has also relied upon the A .. contemporaneous documents like the Weekly Bulletin of Spices Market and also the Public Ledger. The Weekly Bulletin of Spices Market published by the Trade Information Services of the Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the price of Indonesian B cloves on 24.11.2000 was US$ 4765 PMT and that of Zanzibar cloves was US$ 4650 PMT. Such bulletin also indicates that by 23.12.2001 the price of Zanzibar cloves had reached Rs.6100/- PMT. The Public Ledger which is also considered as International Publication of repute indicates that the price c. of cloves in the international market on 27 .11.2000 was US Dollars 4700 which reached US Dollars 6300 on 26.3.2001.

23. We are also satisfied with the records produced before us that the nature of business of M/s. Ketan Trading Co. is primarily dealing with sport goods and not cloves. There is also D )I a reference of the document on record particularly the relevant • bill of lading which indicates that cloves were imported by the appellants from IJIMASIA Pvt. Ltd. through M/s. Ketan Trading Co. at the price of US Dollars 5600 PMT through bill of entry dated 7.2.2001. The value of the said Zanzibar cloves were shown as US Dollars 5600 PMT. It has also come in evidence -. that 9.5648 MTs cloves of Indonesian origin shipped from ' ~ Singapore imported by M/s. Spices Trading Corporation under bill of entry dated 8.5.2001 were bought at the rate of US Dollars·

5500. The said consignment was shipped an 25.2.2001 as per the bill of lading. Another consignment of 9.300 MTs of cloves ¢-Comoros origin was also imported by Mis. Spices Trading Corporation at the same unit price. A table of imports made by the appellants in the Bill of Entry in quesfi~n is placed on ·. record. The evidence therefore which exist on record clearly · G "*\: support the findings and the conclusions arrived at by the Commissioner of Customs (Adjudication), Mumbai and also by the Tribunal. The findings and conclusions cannot be said to be perverse. They are based on cogent reasons which are found to be forceful and reasonable. We find no reason and H

' 968 . SUPREME COURT REPORTS [2009] 9 S.C.R. ..._ A ground to take a different view than what is taken by the said :'4_

two authorities.

24. In our considered opinion, it is conclusiv~ly proved that the Department correctly imposed proper assessment value on the goods in question imported by the appellant. The said value 8 for the purpose of assessment of the goods/had been correctly arrived at in accordance with the provisions of the Acts and the Rules framed th~reunder particularly in accordance with Rule -. 5 of the Valuation Rules.

C 25. In terms of aforesaid discussion and in the facts and circumstances of the case, we find no merit in this appeal which is dismissed with costs. Counsel fee assessed at Rs. 25,000/

K.K.T. Appeal dismissed.