Page 186 - ELT_15th June 2020_VOL 372_Part 6th

864 EXCISE LAW TIMES [ Vol. 372

value is sanctified by law, for all purposes under the Act; we find here that while
the value has been determined as ‘nil’ for assessment of the bills of entry, a dif-
ferent value has been insinuated for redemption with the ostensible justification
of the goods being ‘scrap’ in which we find a fundamental contradiction. If the
goods are redeemable, for being ‘scrap’, the nature of the ‘scrap’ should have
been determined with reference to the heading in the First Schedule to the Cus-
toms Tariff Act, 1975 as duty liability should inevitably be discharged even on
‘scrap’. This leap of ‘unreason’ is neither consistent with Section 12 of Customs
Act, 1962 mandating levy of duty on goods nor with Section 125 of Customs Act,
1962 mandating discharge of duty liability on redeemed goods. The adoption of
‘nil’ value for assessment is also discardable as based on ‘unreason’ for having
been determined in terms of utility to the importer which is conceptually repug-
nant to Section 14 of Customs Act, 1962. The quantification of the penalties is,
therefore, not sustainable in law. It is also noticed that Section 114AA of Customs
Act, 1962 has been invoked for the role of the appellants in allegedly fabricating
the ‘purchase order.’ This document was, apparently, not furnished, nor required
to be furnished, with the bills of entry. These were first called for, as per the ad-
judication order, during the investigations. The existence of, and the contents in,
that document does not have any significance to, or nexus with, the situation re-
ferred to in Section 114AA of Customs Act, 1962. It certainly could not have had
anything to do with the uncleared consignments as no declaration under Section
46 of Customs Act, 1962 is on record.
35. The allegation that the ‘drawings’ were manufactured in India and
exported is based on certain premises and inferences; while we forbear from ven-
turing into the legality and propriety of such conclusion in the absence of an ap-
peal with appropriate locus, the legal consequences of such an assumption cannot
go unnoticed. Under Section 20 of Customs Act, 1962, goods that have originated
in India are, on subsequent import, to be given the same treatment as any other
imported goods. There is a privilege that flows from such origin and that privi-
lege is the abatement of certain duties to be claimed by the importer with refer-
ence to the exemption notification issued under Section 25 of Customs Act, 1962.
There is no doubt that this privilege has not been sought for and the declining of
this privilege cannot be construed as an offence or be held against any person. In
the absence of a claim for such privilege, the appropriate rule in Customs Valua-
tion (Determination of Value of Imported Goods) Rules, 2007 must needs to be
invoked for ascertaining the assessable value. That has not been carried out in
the impugned order.
36. There can be no offence in re-import of validly exported goods.
Though facts have been collated to consider the impugned goods as re-imported,
there is no evidence on record of exports having taken place. It would be reason-
able to presume that re-import must be evidenced by the factum of export or, in
the absence of such, by allegation of wrongful export. In the clear absence of rec-
ord of export, no credence can be given to this assumption, without invoking the
consequence of illicit export, and which has then gone on to attribute responsibil-
ity for such to the appellants herein. The penalties must fail on that flimsiness
too.
37. If the ‘proper officer’ was not in doubt about the origin of the im-
pugned ‘drawings’ and intended that the consequence of that origin, whether
favourable or detrimental to the importer, be visited on the goods, it was incum-
bent upon that authority to proceed under that provision of the law. We see no
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