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HANUMAN PRASAD AND SONS vs COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ

2024-11-27 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 27 August 2024
Judgment pronounced on: 27 November 2024

+ CUSAA 26/2022 & CM APPL 22868/2022 (stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 27/2022 & CM APPL. 22870/2022 (stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.
Mr. Krishnamohan Menon, Ms. Parul Sachdeva, Advs. for Intervenor.

+ CUSAA 90/2022 & CM APPL. 34838/2022 (stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD)
PATPARGANJ NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 91/2022 & CM APPL 34841/2022 (stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 92/2022 & CM APPL. 34911/2022 (stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 93/2022 & CM APPL. 34914/2022 (Interim Stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 94/2022 & CM APPL. 34917/2022 (Interim Stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 95/2022 & CM APPL. 34920/2022 (Interim Stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 96/2022 & CM APPL. 34923/2022 (Interim Stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 97/2022 & CM APPL. 34926/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 98/2022 & CM APPL. 35014/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 99/2022 & CM APPL. 35019/2022 (Interim Stay)
NIRAJ SILK MILLS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 100/2022 & CM APPL. 35028/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 102/2022 & CM APPL. 35103/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 103/2022 & CM APPL. 35108/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 104/2022 & CM APPL. 35113/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 105/2022 & CM APPL. 35679/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 107/2022 & CM APPL. 35731/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 108/2022 & CM APPL. 35734/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 109/2022 & CM APPL. 35737/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 110/2022 & CM APPL. 35897/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.
+ CUSAA 111/2022 & CM APPL. 35901/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.
+ CUSAA 112/2022 & CM APPL. 35904/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 114/2022 & CM APPL. 36495/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 115/2022& CM APPL. 36501/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 116/2022 & CM APPL. 36498/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 117/2022, CM APPL. 36552/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 118/2022, CM APPL. 36555/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 120/2022, CM APPL. 36561/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 121/2022, CM APPL. 36564/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 123/2022, CM APPL. 36924/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 124/2022, CM APPL. 36934/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 125/2022, CM APPL. 36943/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 126/2022, CM APPL. 37373/2022 (Stay)
MANAVI EXIM PVT. LTD. ….. Appellant
Through: Mr. Tarun Gulati, Sr. Adv. with Mr. Prem Ranjan Kumar, Ms. Shruti, Advocates.
versus

PRINCIPAL COMMISSIONER OF CUSTOMS
….. Respondent
Through: Mr. Harpreet Singh, SSC with Ms. Suhani Mathur, Mr. Jatin Kumar, Advs.

+ CUSAA 127/2022, CM APPL. 38033/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 128/2022, CM APPL. 38036/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUSAA 129/2022, CM APPL. 38041/2022 (Interim Stay)
HANUMAN PRASAD AND SONS ….. Appellant
Through: Mr. Yogendra Aldak, Mr. Sumit Khadaria, Mr. Agrim Arora and Ms. Purvi Sinha, Advocates.
versus

COMMISSIONER OF CUSTOMS (ICD) PATPARGANJ
NEW DELHI ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.

+ CUS.A.C. 1/2023, CM APPL. 42196/2023 (Interim Stay)
AGGARWAL TRADERS ….. Appellant
Through: Mr. Subhash Chawla, Mr. Vikash Kumar, Advs.
versus

COMMISSIONER OF CUSTOMS ….. Respondent
Through: Mr. Aditya Singla, SSC for CBIC with Mr. Ritwik Saha, Adv.
CORAM:
HON’BLE MR. JUSTICE YASHWANT VARMA
HON’BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T

Table of Contents

I. Background 13
II. The power of reassessment: a brief overview 33
III. The submissions addressed 46
IV. Evaluation of the Court 82
A. Declared values and the power of reappraisal 82
B. Exploring the concepts of abandonment and waiver 104
C. Rejection of declared values: Assessing its validity 119
D. Value enhancement on the basis of NIDB data 122
V. Disposition 137

YASHWANT VARMA, J.

I. BACKGROUND
1. The instant appeals raise a challenge to the decision rendered by the Customs Excise & Service Tax Appellate Tribunal1 holding that the appellants, having conceded to the valuation undertaken by the proper officer as contemplated under Section 17(5) of the Customs Act, 19622, would have no right to question or assail such assessment and would also be deemed to have waived their right to question that decision by resorting to the statutory remedies otherwise available under the Act. The lead appeal CUSAA 27/2022 came to be admitted by us on 03 August 2022 on the following question of law:
Whether the Tribunal misdirected itself in holding that the appellants in the above-mentioned matter could not question the enhancement made concerning the valuation of the imported goods, once the appellants had given up their right to seek issuance of a show cause notice and/or speaking order under Section 17 of the Customs Act, 1962?
2. In the course of hearing this batch, we had also designated CUSAA 126/2022 as one of the appeals which would be examined and pursuant to which learned counsels for respective sides had also addressed elaborate submissions on the said appeal. We thus, for the purposes of disposal of this batch, deem it appropriate to notice the facts as they obtain in the aforenoted two appeals.
3. The appellant in CUSAA 27/2022 had imported polyester knitted fabrics of different weights during the period November 2018 to April 2019. Those imports were affected on the basis of 27 Bills of Entry3 which were submitted. The respondents appear to have disputed the declared value of the imported goods on the basis of contemporaneous import data obtained from the National Import Database4. It is the case of the appellant that since the clearance of the goods was being inordinately delayed, it was compelled to pay differential customs duty on the enhanced value as computed by the proper officer. It is further alleged that the appellant was compelled and coerced into voluntarily relinquishing its right to receive a speaking order as contemplated under Section 17(5) of the Act.
4. Post the BoE being reassessed, the appellant preferred first appeals before the Commissioner of Customs (Appeals). The first appellate authority by a common order disposed of 27 appeals filed by the appellant holding that the mere clearance of goods at a higher value would not deprive the assessee of the right to institute a statutory appeal and that NIDB data alone could not have constituted the basis for enhancing the value of the imported goods. It was this order of the first appellate authority which was challenged by the respondents before the CESTAT.
5. The CESTAT in terms of the order impugned has essentially held that once the appellant had come to accept the enhanced valuation of the imported goods and waived its right of adjudication, it could not have challenged the reassessment by preferring appeals before the first appellate authority. It has consequently proceeded to set aside the order of the first appellate authority dated 26 April 2019 and allowed the appeals that were preferred by the respondents.
6. The facts of CUSAA 126/2022 proceed along similar lines. The appellant in that appeal had filed 8 BoE between 8 February 2019 and 15 February 2019 in respect of the import of two lots of polyester knitted fabrics and non-textured polyester fabric. The declared value as appearing on those BoE came to be doubted by the proper officer. Since the appellant was desirous of obtaining delivery of those goods and was incurring demurrage charges, it addressed various communications calling upon the respondents to expedite the valuation exercise and stating that it was ready and willing to pay additional customs duty on the enhanced value of goods under protest. It accordingly requested the respondents to clear the consignments at the earliest.
7. Since those communications would have some bearing on the issue which stands raised, we deem it apposite to extract some of those communications hereinbelow:
Date: 11.02.2019
To,
The Assistant Commissioner of Customs
lCD Palwal,
Village Janouli-Baghola,
Haryana-121102.

Subject: Customs Clearance of goods imported vide 5 Bills of Entries.

Dear Sir,

We would like to inform you that we have filed the following bills of entry for customs clearance, but the same has not been yet assessed.
S.#
Bill of Entry No. & Date
Item
1.
9990292 dated 08.02.2019
Lot of Polyester Knitted Fabric.
2.
9990355 dated 08.02.2019
Lot of Polyester Knitted Fabric.
3.
9990356 dated 08.02.2019
Lot of Polyester Knitted Fabric.
4.
9990359 dated 08.02.2019
Lot of Polyester Knitted Fabric.
5.
9990360 dated 08.02.2019
Lot of Polyester Knitted Fabric.
The containers are incurring detention and demurrage on daily basis. In this regard we would like to request you if your goodself is going to enhance the value of goods, we have no objection for that we are ready to pay custom duty on enhance value under protest.

We request you to clear our consignments at the earliest to save us financial losses of detention and demurrage.

Yours truly,
For Manavi Exim Pvt Ltd
Auth. Signatory

xxxx xxxx xxxx

Date: 15.02.2019
To,
The Assistant Commissioner of Customs
lCD Palwal,
Village Janouli-Baghola,
Haryana-121102.

Subject: Customs Clearance of goods imported vide 2 Bill of Entry

Dear Sir,

We would like to inform you that we have filed the following bills of entry for customs clearance, but the same has not been yet assessed.
S.#
Bill of Entry No. & Date
Item
1.
2054909 dated 14.02.2019
Lot of Non textured Polyester
PA Coated Fabric.
2.
2054913 dated 14.02.2019
Lot of Non textured Polyester
PA Coated Fabric.
The containers are incurring detention and demurrage on daily basis. In this regard we would like to request you if your goodself is going to enhance the value of goods, we have no objection for that we are ready to pay custom duty on enhance value under protest.

We request you to clear our consignments at the earliest to save us financial losses of detention and demurrage.

Yours truly,
For Manavi Exim Pvt Ltd
Auth. Signatory

xxxx xxxx xxxx

Date: 16.02.2019
To,
The Assistant Commissioner of Customs
lCD Palwal,
Village Janouli-Baghola,
Haryana-121102.

Subject: Customs Clearance of goods imported vide 1 Bill of Entry

Dear Sir,

We would like to inform you that we have filed the following bills of entry for customs clearance, but the same has not been yet assessed.
S.#
Bill of Entry No. & Date
Item
1.
2065083 dated 15.02.2019
Lot of Non textured Polyester
PA Coated Fabric.
The containers are incurring detention and demurrage on daily basis. In this regard we would like to request you if your goodself is going to enhance the value of goods, we have no objection for that we are ready to pay custom duty on enhance value under protest.

We request you to clear our consignments at the earliest to save us financial losses of detention and demurrage.

Yours truly,
For Manavi Exim Pvt Ltd
Auth. Signatory

8. The aforesaid request as embodied in those letters was reiterated with respect to the other lot which had been imported by the appellant as would be evident from the contents of those communications which were addressed to the respondents as follows:
Date: 18.02.2019
To
The Assistant Commissioner of Customs
lCD Palwal,
Village Janouli-Baghola,
Haryana-121102.

Subject: Customs Clearance of goods imported vide 5 Bill of Entry

Dear Sir,

With reference to our letter dated 13.02.2019 for each Bill of Entry’s. We would like to inform you that we have filed the following bills of entry for customs clearance, but the same has not been yet assessed.
S.#
Bill of Entry No. & Date
Item
1.
9990350 dated 08.02.2019
Lot of Polyester Knitted Fabric.
2.
9990356 dated 08.02.2019
Lot of Polyester Knitted Fabric.
3.
9990292 dated 08.02.2019
Lot of Polyester Knitted Fabric.
4.
9990360 dated 08.02.2019
Lot of Polyester Knitted Fabric.
5.
9990355 dated 08.02.2019
Lot of Polyester Knitted Fabric.
The containers are incurring detention and demurrage on daily basis. In this regard we would like to request you if your goodself is going to enhance the value of goods, we have no objection for that we are ready to pay custom duty on enhance value under protest. If the assessment of goods are going to take time then we request you to clear our goods provisionally we are ready to submit PD Bond and Bank Guarantee for 30% of the differential customs duty.

We request you to clear our consignments at the earliest to save us financial losses of detention and demurrage.

Yours truly,
For Manavi Exim Pvt Ltd
Auth. Signatory

xxxx xxxx xxxx

Date: 20.02.2019
To
The Assistant Commissioner of Customs
lCD Palwal,
Village Janouli-Baghola,
Haryana-121102.

Subject: Customs Clearance of goods imported vide 5 Bill of Entry

Dear Sir,

With reference to our letter dated 15-16.02.2019 for each Bill of Entry’s. We would like to inform you that we have filed the following bills of entry for customs clearance, but the same has not been yet assessed.
S.#
Bill of Entry No. & Date
Item
1.
2065083 dated 15.02.2019
Lot of Non Textured Polyester
Fabric.
2.
2054913 dated 14.02.2019
Lot of Non Textured Polyester
Fabric.
3.
2054909 dated 14.02.2019
Lot of Non Textured Polyester
Fabric.
The containers are incurring detention and demurrage on daily basis. In this regard we would like to request you if your goodself is going to enhance the value of goods, we have no objection for that we are ready to pay custom duty on enhance value under protest. If the assessment of goods are going to take time then we request you to clear our goods provisionally we are ready to submit PD Bond and Bank Guarantee for 30% of the differential customs duty.

We request you to clear our consignments at the earliest to save us financial losses of detention and demurrage.

Yours truly,
For Manavi Exim Pvt Ltd
Auth. Signatory

9. The requests as made in the aforementioned communications was then again addressed in a letter dated 26 February 2019 and in terms of which the appellant took the following stand:
Date: 20.02.2019
To
The Assistant Commissioner of Customs
lCD Palwal,
Village Janouli-Baghola,
Haryana-121102.
Sir,
Subject:- Acceptance of enhancement of value of goods covered under Bills of Entry No.9990355 dated 08.02.2019 Reg.
Please refer to your query on EDI System in respect of value enhancement of the goods i.e. ‘Lot of Polyester Knitted Fabric’ covered under Bills of entry No.9990355 dated 08.02.2019.
In this regard, it is submitted that we have gone through the details narrated by you including its grounds of rejection of declared value under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962.
We have also gone through and understood the details of contemporaneous imports of similar/identical goods and we accept that the value declared by us is significantly lower than the value at which identical/similar goods imported at or about the same time in comparable quantities in comparable commercial transactions were assessed at other ports of the country.
We fully agree that the value of goods declared by us is liable to be rejected by Customs Authorities under the provisions of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962. Thereafter, the value of the goods imported by us under the said Bill of Entry is liable to be re-determined from the declared value US$ 1.03 per kg. to US$1.94 per kg. on the basis of data of contemporaneous import of similar/identical goods in terms of Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962 and the duty payable is liable to be enhanced accordingly under Section 17 (5) of the Customs Act, 1962.
Accordingly, as we are in agreement with the proposed enhancement of value/duty, we do not want any show cause notice or speaking order in the matter, as we have to fulfil the commitments to our customers therefore, You are requested to redetermine the value and re-assess the duty in accordance with the value/duty as proposed so that we can clear the goods asap to save us from the financial burden of detention and demurrages.
Yours Sincerely
For Manavi Exim Pvt. Ltd.
Authorised Signatory

10. After having obtained clearance on payment of additional customs duty on the enhanced value as determined, the appellant proceeded to file appeals contemplated by Section 129A of the Act. Those appeals when taken up for consideration by the first appellate authority came to be allowed with that authority observing that the challenge was liable to be answered in favour of the appellants in light of its decision in C.C., Noida vs. VSM Impex Pvt. Ltd.5 and where the CESTAT had taken the view that a statutory obligation stands cast upon the adjudicating authority to pass a speaking order if it were to choose to reassess a BoE. The CESTAT in VSM Impex also distinguished the decisions rendered by it in M/s Advanced Scan Support Technologies vs. C.C., Jodhpur6 and M/s Vikas Spinners vs. C.C., Lucknow7 for reasons which are recorded in paragraph 10 of the order of the first appellate authority in CUSAA 126/2022, and which is reproduced hereinbelow:
10. Having considered the rival contentions and after perusal of the records, we find that the issue here is no longer res-integra. Under similar facts and circumstances on import of similar goods by the M/s VSM Impex Pvt. Ltd., this Tribunal referring to Section 17(5) read with Section 17(4), concluded that the adjudicating authority is required to pass a speaking order within fifteen days of the re-assessment of the Bills of Entry. Section 17(5) does not make any whisper that the assessee/ importer is required to make a request or to seek an order under Section 17(5) of the Act. Further, this Tribunal observed that the reliance placed by Revenue on the ruling of Advanced Scan support Technologies vs, CC, Jodhpur- 2015 (326) ELT 185 (Tri. Delhi) and Vikas Spinners vs. CC, Lucknow – 2001 (128) ELT 143 (Tri. Delhi), that in these decisions, there is no issue of passing an order under Section 17(5) of the Act, after passing of Bills of entry within fifteen days, hence these decisions are distinguishable and not applicable.

11. It was this decision which came to be subjected to challenge before the CESTAT. The CESTAT in CUSAA 27/2022 as well as CUSAA 126/2022 had taken an identical view. It has principally held that once the importer concedes to the reassessment undertaken by the proper officer in terms of Section 17(4) and gives up its right to question the same, the authority would be justified in finalizing the assessment based on the opinion so formed and that it would not be open for the importer thereafter to resile from the concession so made. This becomes evident from a reading of paragraph 23 of the order impugned in CUSAA 27/2022 which is extracted hereinbelow:

23. In the present case, as noticed above, the proper officer doubted the truth or accuracy of the value declared by the importer for the reason that contemporaneous data had a significantly higher value. It was open to the importers to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared by them and seek a reasonable opportunity of being heard, but they did not do so. On the other hand, the importers submitted in writing that though they had declared the value of the imported goods at 1.20 USD per kg., but on being shown contemporaneous data, they have agreed that the value of the goods should be enhanced to 1.80 USD per kg for Hanuman Prasad and to 1.94 USD per kg. for Niraj Silk. The importers also specifically stated that they did not want to avail of the right conferred on them under section 124 of the Customs Act and, therefore, they did not want any show cause notice to be issued to them or personal hearing to be provided to them. The importers also specifically stated that they did not want a speaking order to be passed on the Bills of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance in writing.

12. The CESTAT has proceeded to also negate the contention of the appellants addressed in light of the provisions made in the Customs Valuation (Determination or Value of Imported Goods) Rules, 20078. It has in this respect held as follows:
30. The very fact that the importers had agreed for enhancement of the declared value in the letters submitted by them to the assessing authority, itself implies that the importers had not accepted the value declared by them in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the importers had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules. This is for the reason that it is only when the value of the imported goods cannot be determined under rule 3(1) for the reason that the declared value has been rejected under sub rule 2, that the value of the imported goods is required to be determined by proceeding sequentially through rule 4 to 9. As noticed above, the importers had accepted the enhanced value and there was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially.

13. The CESTAT has essentially followed its decisions rendered in Advanced Scan Support and Vikas Spinners as would be evident from a reading of paragraphs 31 and 32 of the judgment impugned before us:

31. In this connection, it would be useful to refer to a decision of this Tribunal in Advanced Scan Support Technologies vs Commissioner of Customs, Jodhpur, wherein the Tribunal, after making reference to the decisions of the Tribunal in Vikas Spinners vs Commissioner of Customs, Lucknow and Guardian Plasticote Ltd. v. CC (Port), Kolkotta, held that as the Appellant therein had expressly given consent to the value proposed by the Revenue and stated that it did not want any show cause notice or personal hearing, it was not necessary for the Revenue to establish the valuation any further as the consented value became the declared transaction value requiring no further investigation or justification. Paragraph 5 of the decision is reproduced below:
“5. We have considered the contentions of both sides. We find that whatever may be the reasons, the appellant expressly gave its consent to the value proposed by Revenue and expressly stated that it did not want any Show Cause Notice or personal hearing. Even the duty was paid without protest. By consenting to enhancement of value and thereby voluntarily foregoing the need for a Show Cause Notice, the appellant made it unnecessary for Revenue to establish the valuation any further as the consented value in effect becomes the declared transaction value requiring no further investigation or justification. To allow the appellant to contest the consented value now is to put Revenue in an impossible situation as the goods are no longer available for inspection and Revenue rightly did not proceed to further collect and compile all the evidences/basis into a Show Cause Notice as doing so, in spite of the appellant having consented to the enhancement of value and requested for no Show Cause Notice, could/would have invited allegation of harassment and delay in clearance of goods. When Show Cause Notice is expressly foregone and the valuation is consented, the violation of principles of natural justice cannot be alleged. In the present case, while value can be challenged but such a challenge would be of no avail as with the goods not being available and valuation earlier having been consented, the onus will be on the appellant to establish that the valuation as per his consent suffered from fatal infirmity and such onus has not been discharged. Further, valuation of such goods requires their physical inspection and so reassessment of value in the absence of goods will not be possible. The case of Eicher Tractors v. Union of India (supra) cited by the appellant is not relevant here as in that case there was no evidence that the assessee had consented to enhancement of value.”
[emphasis supplied]
32. In Vikas Spinners, the Tribunal dealing with a similar situation, observed as under :
“7. In our view in the present appeal, the question of loading of the value of the goods cannot at all be legally agitated by the appellants. Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999. After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5-1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and paid the duty amount on the loaded value of the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of loaded value of the goods as determined in the presence of their Representative/Special Attorney and paid the duty thereon accordingly.”

14. The CESTAT has ultimately proceeded to record the following conclusions:
35. The following position emerges from the aforesaid decisions of the Tribunal:
(i) When an importer consents to the enhancement of value, it becomes unnecessary for the revenue to establish the valuation as the consented value, in effect, becomes the declared transaction value requiring no further investigation;
(ii) When an importer accepts the loaded value of the goods without any protest or objection, the importer cannot be permitted to deny its correctness; and
(iii) The burden of the Department to establish the declared value to be in correct is discharged if the enhanced value is voluntarily accepted.

15. It appears that in the course of the prosecution of those appeals, the decisions of the Supreme Court in Eicher Tractors Ltd. vs. Commr. of Customs9 as well as Century Metal Recycling (P) Ltd. vs. Union of India10 were also cited for the consideration of the CESTAT. However, both those decisions have been distinguished with the CESTAT observing as follows:

45. The Supreme Court observed in Eicher Tractors Ltd., which decision has also been relied upon by the learned counsel for the Respondent, that it is only when the transaction value under rule 4 of the Valuation Rules is rejected that the transaction value is required to be determined by proceeding sequentially through rules 5 to 8. The decision of the Supreme Court in Century Metal Recycling also holds that if the declared transaction value is rejected, then it has to be determined in accordance with the procedure prescribed in rules 4 to 9. These decisions of the Supreme Court, for the reasons stated above, do not help the respondent.

16. Yet another contention which appears to have been urged before the CESTAT was whether the NIDB data could have constituted a valid basis for the rejection of the transaction values as disclosed in the BoE. This question came to be answered in the affirmative by the CESTAT as would be evident from the following:
46. Learned counsel for the respondent has also emphasized that NIDB data cannot be the sole basis to reject the transaction value without any cogent reasons. As seen above, the importers had in writing accepted the transaction value and it is perhaps for this reason that they did not require any show cause notice to be issued to them or a personal hearing to be granted to them. The respondent is, therefore, not justified in asserting that the transaction value has been determined on the basis NIDB data. It was their acceptance of the value that formed the basis for determination of the value. The decisions relied upon by the respondent to support the contention sought to be raised are, therefore, of no benefit to them.
47. The general observations made the Commissioner (Appeals) in the impugned order that the value declared in the Bills of Entry were being enhanced uniformly by the Department for a considerable period of time was uncalled for. The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case.
17. The appeals in the case of Manavi Exim, the appellant in CUSAA 126/2022, also came to be allowed on identical reasoning. This is evident from the following observations appearing in the order of the CESTAT:
13. The Commissioner (Appeals), despite a categorical statement made by the importers that they did not desire a speaking order to be passed, observed “an obligation was cast on the assessing authority to pass a speaking order disclosing the grounds for rejecting the declared value and only then the assessing officer could have enhanced the value .” This finding of the Commissioner (Appeals) is perverse as it is clearly contrary to the specific statement made by the importers in the letters submitted by them to the assessing officer. What has also to be kept in mind is that section 17(5) of the Customs Act permits the importers to waive this right.
14. It is seen from a perusal of section 17(4) of the Customs Act that the proper officer can re-assess the duty leviable, if it is found on verification, examination or testing of the goods or otherwise that the self-assessment was not done correctly. Sub-section (5) of section 17 provides that where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer, the proper officer shall pass a speaking order on the re-assessment, except in a case where the importer confirms his acceptance of the said reassessment in writing.
15. In the present case, as noticed above, the proper officer doubted the truth or accuracy of the value declared by the importers for the reason that contemporaneous data had a significantly higher value. It was open to the importers to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared by them and seek a reasonable opportunity of being heard, but they did not do so. On the other hand, the importers submitted in writing that though they had declared the value of the imported goods at a particular value, but on being shown contemporaneous data, they agreed that the value of the goods should be enhanced. The importers also specifically stated that they did not want to avail of the right conferred on them under section 124 of the Customs Act and, therefore, they did not want any show cause notice to be issued to them or personal hearing to be provided to them. The importers also specifically stated that they did not want a speaking order to be passed on the Bills of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importers/exporters confirm the acceptance in writing.
It is the correctness of the aforesaid view expressed by the CESTAT which is questioned before us in this batch of appeals.
18. On 02 August 2023, we had briefly taken note of the rival submissions in order to identify the principal questions which could be said to arise. That order is extracted hereinbelow:
1. This batch of appeals question the correctness of the view taken and expressed by the Customs Excise and Service Tax Appellate Tribunal [CESTAT] in the orders impugned and revolve upon the construction to be accorded to the concession which may be submitted by an importer as contemplated under Section 17(5) of the Customs Act, 1962 [the Act].
2. Section 17 of the Act reads as follows: –
“17. Assessment of duty
(1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods.
(2) The proper officer may verify the entries made under section 46 or section 50 and the self-assessment of goods referred to in sub section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary:
PROVIDED that the selection of cases lor verification shall primarily be on the basis of risk evaluation through appropriate selection criteria.
(3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information.
(4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods.
(5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be.
3. As would be manifest from a reading of the aforesaid provision, importers initially follow a process of self-assessment and declaration of the transaction value. In terms of sub-section (2) the proper officer is entitled to examine the veracity of the self-declaration that is made. To assist it in that exercise, Section 17(3) empowers the proper officer to call upon the importer or the exporter, as the ease may be, to produce further document or information whereby the correct duty leviable on the imported or exported goods could be ascertained.
4. Section 17(4) pertains to a situation where the proper officer on verification, examination/testing of goods or otherwise harbors doubts with respect to the correctness of the declared transaction value and undertakes an exercise to reassess the duty leviable on such goods.
5. The scope of Section 17(4) and the exercise which is liable to be undertaken by the proper officer must also be appreciated in the backdrop of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 which reads as follows:-
“RULE 12. Rejection of declared value. –
1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of rule 3.
(2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1).
Explanation.-(1) For the removal of doubts, it is hereby declared that:-
(i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9.
(ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers.
(iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include
(a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed;
(b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price;
(c) the sale involves special discounts limited to exclusive agents;
(d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture or production;
(e) the non declaration of parameters such as brand, grade, specifications that have relevance to value;
(f) the fraudulent or manipulated documents.
6. The scope and ambit of Rule 12 has been lucidly explained by the Supreme Court In Century Metal Recycling Private Limited & Anr. vs. Union of India & Ors. as follows: –
14. Rule 12, which as noticed above enjoys primacy and pivotal position, applies where the proper officer has reason to doubt the truth or accuracy of the value declared for the imported goods. It envisages a two-step verification and examination exercise. At the first instance, the proper officer must ask and call upon the importer to furnish further information including documents to justify the declared transactional value. The proper officer may thereafter accept the transactional value as declared. However, where the proper officer is not satisfied and has reasonable doubt about the truth or accuracy of the value so declared, it is deemed that the transactional value of such imported goods cannot be determined under the provision of sub-rule (1) of Rule 3 of the 2007 Rules. Clause (iii) of Explanation to Rule 12 states that the proper officer can on certain reasons raise doubts about the truth or accuracy of declared value. Certain reasons would include conditions specified in clauses (a) to (f) i.e. higher value of identical similar goods of comparable quantities in a comparable transaction, abnormal discount or abnormal deduction from ordinary competitive prices, sales involving the special prices, misdeclaration on parameters such as description, quality, quantity, country of origin, year of manufacture or production, non-declaration of parameters such as brand and grade, etc. and fraudulent or manipulated documents. Grounds mentioned in (a) to (f) however are not exhaustive of certain reasons to raise doubt about the truth or accuracy of the declared value. Clause (ii) to Explanation states that the declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after enquiry in consultation with the importers. Clause (i) to the Explanation states that Rule 12 does not provide a method of determination of value but provides the procedure or mechanism in cases where declared value can be rejected when there is a reasonable doubt that the declared transaction value does not represent the actual transaction value. In such cases the transaction value is to be sequentially determined in accordance with Rules 4 to 9 of the 2007 Rules.
15. Sub-rule (2) of Rule 12 stipulates that on request of an importer, the proper officer shall intimate to the importer in writing the grounds i.e. the reason for doubting the truth or accuracy of the value declared in relation to the imported goods. Further, the proper officer shall provide a reasonable opportunity of being heard to the importer before he makes the valuation in the form of final decision under sub-rule (1).
16. The requirements of Rule 12, therefore, can be summarised as under:
16.1. The proper officer should have reasonable doubt as to the transactional value on account of truth or accuracy of the value declared in relation to the imported goods.
16.2. Proper officer must ask the importer of such goods further information which may include documents or evidence.
16.3. On receiving such information or in the absence of response from the importer, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists.
16.4. When the proper officer does not have reasonable doubt, the goods are cleared on the declared value.
16.5. When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules.
16.6. The proper officer can raise doubts as to the truth or accuracy of the declared value on certain reasons which could include the grounds specified in sub-clauses (a) to (f) in clause (iii) of the Explanation.
16.7. The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested.
16.8. The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules.
7. The instant batch of cases however pertain to eases where the importer had submitted its consent contemplated in terms of Section 17(5). The Tribunal has taken the view that once the importer concedes to a re-assessment being undertaken by the Proper Officer in terms of sub-section (5), it loses the right to question the result of that assessment either by way of an appeal or to even question the quantification of additional duty that may be payable.
8. The appellants would contend that the concession which is spoken of in sub-section (5) essentially appears to stand restricted to a reassessment being undertaken by the proper officer and the formation of opinion contemplated under Section 17(4) or Rule 12 not being questioned. However, that concession would not detract from the right of the importer to question the correctness of the assessment undertaken and which right otherwise stands protected under different provisions of the Act. According to the appellants, while the concession submitted in terms of Section 17(5) may deprive the importer of the right to question whether there was material which would constitute sufficient ground for the proper officer to harbor a “reason to believe” and doubt the transaction value, the same would not take away the right of the importer to question the final assessment itself.
9. We also bear in consideration the submission of the respondents
who contend that the scheme of sub-sections (4) and (5) of Section 17 clearly suggests that a reassessment has already been undertaken and completed by the proper officer and which establishes the incorrectness of the self-declaration being a precursor to the importer submitting the concession. This flows from Section 17(5) which commences with the phrase “Where any reassessment done.” and proceeds to speak of the importer “confirming his acceptance of the said re-assessment in writing”.
10. On a preliminary examination of the scheme of Section 17 we are also of the view that while it may be open for an importer to proceed in terms of Section 17(5), the same would not detract from the obligation of the proper officer to have formed the requisite belief to doubt the transaction value and record reasons in respect thereof on the file before proceeding to invite the importer in terms as contemplated under Section 17(5).
11. The right of the importer to reagitate or question the result of the re-assessment would have to be examined in the aforesaid light. 12. In order to enable Mr. Singla, learned counsel to address submissions in the aforesaid light, let the matter be called again on 18.09.2023.

II. THE POWER OF REASSESSMENT: A BRIEF OVERVIEW
19. Before we proceed to record the submissions that were advanced by and on behalf of respective sides, it would be appropriate to take note of and extract the relevant statutory provisions on the basis of which the question as posited would be liable to be answered. The subject of valuation of goods is firstly dealt with in Section 14 of the Act. The said provision reads thus:
14. Valuation of goods.
(1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf:
PROVIDED that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf:
PROVIDED further that the rules made in this behalf may provide for,
(i) the circumstances in which the buyer and the seller shall be deemed to be related;
(ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case;
(iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section:
[(iv) the additional obligations of the importer in respect of any class of imported goods and the checks to be exercised, including the circumstances and manner of exercising thereof, as the Board may specify, where, the Board has reason to believe that the value of such goods may not be declared truthfully or accurately, having regard to the trend of declared value of such goods or any other relevant criteria:]
PROVIDED also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Section 46, or a shipping bill of export, as the case may be, is presented under Section 50.
(2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value.
Explanation.For the purposes of this section
(a) rate of exchange means the rate of exchange
(i) determined by the Board, or
(ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency;
(b) foreign currency and Indian currency have the meanings respectively assigned to them in clause (m) and clause (q) of Section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).]
20. As is evident from a reading of Section 14, the value of imported and exported goods is recognized to be the transaction value and which expression is explained to mean the price actually paid or payable for those goods when sold for export to India or for export from India for delivery at the time and place of exportation. The Proviso to Section 14(1) then stipulates that the transaction value would include various additional components such as amounts paid or payable for costs and services, design work, royalties, license fees and others to be determined in the manner specified by statutory rules which may be made in that regard. The Second Proviso thereafter proceeds to identify some of the aspects which could be regulated by way of those rules.
21. Sections 15 and 16 of the Act deal with the date with reference to which the rate of duty and tariff evaluation of imported or exported goods is to be determined. Those provisions are extracted hereunder:
15. Date for determination of rate of duty and tariff valuation of imported goods.
(1) [The rate of duty [* * *] and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,
(a) in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that section;
(b) in the case of goods cleared from a warehouse under Section 68, on the date on which [a bill of entry for home consumption in respect of such goods is presented under that section];
(c) in the case of any other goods, on the date of payment of duty:
[PROVIDED that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft [or the vehicle] by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be.]
(2) The provisions of this section shall not apply to baggage and goods imported by post.
(3) [* * *]
16. Date for determination of rate of duty and tariff valuation of export goods.
[(1) The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate and valuation in force,
(a) in the case of goods entered for export under Section 50, on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under Section 51.
(b) in the case of any other goods, on the date of payment of duty.]
(2) The provisions of this section shall not apply to baggage and goods exported by post.
22. The principal provision with which we are concerned is Section 17 and which relates to assessment of duty. Section 17 reads as follows:

17. Assessment of duty.
(1) An importer entering any imported goods under Section 46, or an exporter entering any export goods under Section 50, shall, save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods.
(2) The proper officer may verify [the entries made under Section 46 or Section 50 and the self-assessment of goods referred to in sub-section (1)] and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary.
[PROVIDED that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria.]
[(3) For [the purposes of verification] under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information.]
(4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods.
(5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter [* * *] and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be.
(6) [* * *]
Explanation.For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of Section 17 as it stood immediately before the date on which such assent is received.]
23. By virtue of Section 18 of the Act, an importer or exporter is statutorily enabled to seek clearance of goods upon a provisional assessment of duty. That provi