M/S Chaudharyship Breakers
Vs Commissioner of Customs, Ahmadabad
JUDGMENT
D.K. JAIN, J.:
I.A. Nos.3 and 4 of
2005
1.
In
the absence of any resistance, both the applications are allowed and the
additional documents are taken on record. Applications stand disposed of.
2.
Delay
condoned.
3.
This
civil appeal under Section 130E of the Customs Act, 1962 (for short "the
Act") is directed against order dated 2nd February 2005, passed by the
Customs, Excise and Service Tax Appellate Tribunal (for short "the
Tribunal"), whereby the appeal preferred by the appellant herein has
been dismissed, confirming the levy of additional customs duty by virtue of
the final assessment order passed by the Deputy Commissioner (Customs),
Bhavnagar on 28th August 2000.
4.
Shorn
of unnecessary details, the facts, material for the adjudication of the present
appeal, may be stated as follows:
M/S Chaudhary Ship
Breakers, the appellant before us, imported an old vessel for demolition
purpose under Memorandum of Agreement (for short "MOA") dated 19thNovember
1997 with Standard Marine Trading Inc., New York on "as is where is"
basis. As per the said MOA, the total purchase price of the vessel was agreed
at US $992887.20 at the rate of US $ 172 per long ton. The Light Displacement
Tonnage (LDT) of the vessel was shown at5772.6 LDT. As per Clause 12(B) of
the MOA, the buyer was given an option to seek proportionate reduction in purchase
price if the vessel suffered any partial damage so as to affect the vessel's
LDT. Clause 15 contained the description/ specifications of the vessel wherein
the ballast tanks of the vessel were described as "double bottom tanks,
fore peak tank, AFT peak tank and wing tank." Further, Clause 16 provided
that any dispute relating to the interpretation of the said MOA would be
referred to arbitration. Clause 25 gave seller the option to repudiate the
agreement if there was any dispute in relation to the description of the
vessel.
5.
The
vessel arrived at the Alang Anchorage on 21st November 1997. The surveyors
carried out inspection on 22nd November 1997, and submitted their report on 7th
July 2000. The said report stated that "since the sides tanks are meant
for the receipt/carriage of sea water ballast for the ship's stability, the
plating over the years undergo heavy corrosion (wastage.) Accordingly, the ship
breaker is bound to suffer additional (illegible) loss on this account."
6.
It
seems that in light of the afore-quoted observations by the surveyors, fresh
negotiations took place between the seller and the appellant, which resulted in
a fresh agreement in the form of an addendum dated 8th December 1997 to the
original MOA In the said addendum, the price of the vessel was reduced to US $
929388.60. The addendum mentioned that the price reduction was due to the
"double skin." The bill of entry was filed on 19th December 1997 at
the reduced price of the vessel.
7.
A
provisional assessment was made at the reduced price mentioned in the addendum,
and differential duty of ` 6, 76,415/- was sought to be levied. The final assessment
order was passed by the Deputy Commissioner of Customs, Bhavnagar on 28th
August 2000, at the original transaction value of the vessel at US $ 992887.20.
8.
The
appeal filed by the appellant against the said order of adjudication was
dismissed by the Commissioner of Customs (Appeals) on 5th November 2003 on the
ground that the importer had not produced any evidence to that the vessel was
not the same as was offered to them under the MOA, as was required to be
demonstrated by the importer in light of the decisions of the Tribunal in
Commissioner of Customs, Ahmedabad Vs. Atam Manohar Ship Breakers Pvt. Ltd.1
and Commissioner of Customs, Ahemdabad Vs. Guru Ashish Ship Breakers2. The
Commissioner (Appeals) observed that:
"10. The
description does not show that the vessel, which was contracted, was Single
Skin or Double Skin. The Survey Reports of M/s. Erison & Richards dated
22.1.97 does not mention anything about the discrepancy claimed by the
appellant........ .... .... .... .... .... .... .... .... .... .... .... ....
.... ........ .... .... .... .... ...
11. I rely on the
observation of the Tribunal in the case of Atam Manohar (supra)and hold that the
appellant has not produced any evidence to show that the vessel was not the
same as was offered to them vide MoA dated 19.11.97. They have failed to
produce any cogent reason for reduction in price from the MoA."
9.
Aggrieved
by the said order, the appellant carried the matter in further appeal to the
Tribunal. Distinguishing the decision of the Tribunal in the case of Atam
Manohar (supra), on which reliance was placed by the 2003 (156) E.L.T. 151
(Tri.-Mumbai) 2003 (157) E.L.T. 277 (Tri.-Mumbai)
Appellant, the Tribunal
dismissed the appeal, holding thus:
"In the present
case there is no provision in the Memorandum of agreement for reduction of
price on any account. We find that Tribunal in the case of Guru Ashish Ship
Breakers (supra) held that in absence of any provision in the memorandum of
agreement regarding variation in price, the reduction in price after import is
not sustainable. In the present case as discussed above, the price was revised
after import and in the absence of any provisions regarding price variation in
the memorandum of agreement; we find no merit in the appeal."
10.
Hence,
the present civil appeal by the importer.
11.
11.
Mr. Pawan Shree Agrawal, learned counsel appearing for the appellant, while
assailing the impugned order, strenuously urged that since under Section 14 of
the Act the value of the goods is deemed to be the price at which such or
like goods are ordinarily sold in the course of international trade, the price
that was actually paid by the appellant in terms of addendum dated 8th
December 1997, is to be adopted as the "transaction value" in terms of
Rule 3 read with Rule 4(1) of the Customs Valuation (Determination of Price of
Imported Goods) Rules, 1988 (for short "the 1988 Rules") for the
purpose of levy of customs duty under the Act. Learned counsel
commended us to the GATT Customs Valuation Code, which, inter-alia,
contemplates that if the parties agree upon a price adjustment promptly, even
if there is nothing in writing between them on the subject, the Customs
should accept the adjusted price as the basis for transaction value.
12.
12.
Per contra, Mr. V. Shekhar, learned senior counsel appearing for the revenue,
supported the order of the Tribunal. Learned counsel emphasised that in the
absence of any stipulation in the MOA for reduction in the agreed price, the
revised price mentioned in the addendum is of no consequence for the purpose of
Section 14 of the Act.
13.
13.
At the outset, we may note that the decision of the Tribunal in Atam Manohar
(supra) was questioned by the revenue before this Court in Civil Appeal No.146
of 2004. While allowing the appeal and setting aside the order of the
Tribunal primarily on the ground that the addendum was a self-serving
document, the Court observed thus:
"We may also
point out that in this case we are basically concerned with the genuineness of
the addendum to the MoA dated 13th April, 1999. If one looks at the said
addendum, we find that the date on which the said addendum stood executed is
not given. Further, when did the addendum stand incorporated in the MoA. We do
not find the date on which the clause stood inserted in the MoA. Further, the
said addendum does not give any reason for reduction in the price from US $ 9,70,960.23
to US $ 8,70,960.23. Further, the most clinching factor to be seen is that the said
addendum appears to have been executed at the request of the buyer. In our
view, this is a self- serving document. In this connection, it may also be
noted that the MoA dated 13th April, 1999 states that the vessel is bought on
"as is where is" basis. If that be the case, we do not know on what
basis the value of the vessel stood reduced from US $ 9,70,960.23 to US $
8,70,960.23. Lastly, it is stated on record that one of the items was not in a
working condition and by way of damages, the price stood reduced. It is not so stated
in the addendum. If it is the case of damages, then, surely it would have been
so stated in the addendum."
14.
It
is manifest that the Court expressed the view that where the price of the
vessel had been reduced by way of an addendum to the original agreement, the
acceptance of the revised price would depend on the genuineness of the said
addendum. In other words, the Court laid greater emphasis on the genuineness
or otherwise of the addendum and not on the factum of absence of a provision
in the original agreement for reduction of price for the reasons stated in the
addendum, as held in the case of Guru Ashish Ship Breakers (supra), relied
upon by the Tribunal in the present case.
15.
According
to Section 14(1) of the Act, assessment of customs duty under the Customs
Tariff Act, 1975 is to be made on the value of the goods imported. Unless the
value of the goods is fixed under the sub-section (2) of Section 14, the value
has to be determined under sub- section (1) of the said Section. The value, as
per Section 14(1), as it stood prior to its amendment with effect from 10th
October 2007, shall be deemed to be the price at which such or like goods are
ordinarily sold, or offered for sale, for delivery at the time and place of
importation - in the course of international trade. The word
"ordinarily" is clarified in the Section itself, which describes an
"ordinary" sale as one "where the seller and the buyer have no
interest in the business of each other and the price is the sole consideration
for the sale...".According to Section 14(1A) price of imported goods is to
be determined in accordance with the Rules framed in this behalf. Under Rule
3(i) of the 1988 Rules, the value of the imported goods shall be the
"transaction value”. Transaction value has been defined in Rule 2(f) as
meaning the value determined in accordance with Rule 4.Rule 4(1), in turn,
states that "the transaction value of the 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." It
is clear from a conjoint reading of Rule3 (i) and Rule 4(1) that the
adjudicating authority is bound to accept the price actually paid or payable
for the goods as the transaction value, except where exceptions
enumerated in Rule 4(2) are attracted, which is not the case here. It is,
therefore, manifest that both Section14 (1) and Rule 4 provide that in the
absence of any of the special circumstances indicated in Section 14(1) and
particularized in Rule 4(2) of the 1988 Rules, the price paid by an importer to
the seller in the ordinary course of commerce is to be taken as the transaction
value for the purpose of valuation of goods.
16.
Having
regard to the afore-stated legal position, the controversy at hand narrows down
to the question whether the transaction value of the vessel is to be price
mentioned in the original MOA or the reduced price indicated in the addendum.
We are of the opinion that in light of the statutory provisions, the factum of actual
payment of the price in terms of the addendum cannot be ignored while
determining the value of the vessel under Section 14 of the Act. We may,
however, hasten to add that in such a situation the genuineness and the necessity
of reduction in the price are required to be scrutinised very carefully.
17.
17.
As afore-stated, in the instant case, the Tribunal has not examined the
genuineness of the addendum, and has proceeded to reject the appeal of the
appellant on the short ground that there was no provision for price variation
in the original MOA. We may, however, add that the Commissioner (Appeals) did
examine the cogency of the reasons for price reduction though he was not
convinced to accept the same.
18.
18.
For all these reasons, we are of the opinion that the Tribunal needs to
examine the matter afresh. Accordingly, the appeal is allowed; the impugned
order is set aside, and the matter is remitted back to the Tribunal for fresh
consideration, particularly in relation to the genuineness of the addendum
entered into between the appellant and the supplier on 8th December 1997.
19.
Parties
to bear their own costs throughout.
...........................................J.(D.K.
JAIN)
............................................J. (H.L. DATTU)
NEW
DELHI;
OCTOBER
22, 2010
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