Page 214 - ELT_15th August 2020_Vol 373_Part 4

548 EXCISE LAW TIMES [ Vol. 373

uniformly. This can be a justification only if the loading, unloading and
handling charges are not ascertainable. Where such charges are known and
determinable, there is no reason to have such a yardstick. We, therefore, are
not impressed with the reason given by the authorities to have such a pro-
vision and are of the opinion that the authorities have not been able to satis-
fy as to how such a provision helps in achieving the object of Section 14 of
the Act. It cannot be ignored that this provision as well as Valuation Rules
are enacted on the lines of GATT guidelines and the golden thread which
runs through is the actual cost principle. Further, the loading, unloading
and handling charges are fixed by International Airport Authority.
… … …
(36) We are, therefore, of the opinion that impugned amendment, namely,
proviso (ii) to sub-rule (2) of Rule 9 introduced vide Notification dated 5-7-
1990 is unsustainable and bad in law as it exists in the present form and it
has to be read down to mean that this clause would apply only when actual
charges referred to in Clause (b) are not ascertainable.”
41. It will be appropriate to reproduce Section 14 of the Customs Act,
that was amended on 10th October 2007 and it is as follow :
“Section 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 val-
ue 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 in-
clude, in addition to the price as aforesaid, any amount paid or payable for
costs and services, including commissions and brokerage, engineering, de-
sign work, royalties and licence fees, costs of transportation to the place of
importation, insurance, loading, unloading and handling charges to the ex-
tent and in the manner specified in the rules made in this behalf :”
42. The Supreme Court noticed the change in the principle that had
been brought about in Section 14(1) of the Act in paragraph 22 judgment of Wipro
Ltd. and they are as follows :
“(22) The underlying principle contained in amended sub-section (1) of
Section 14 is to consider transaction value of the goods imported or export-
ed for the purpose of customs duty. Transaction value is stated to be a price
actually paid or payable for the goods when sold for export to India for de-
livery at the time and place of importation. Therefore, it is the price which
is actually paid or payable for delivery at the time and place of importation,
which is to be treated as transaction value. However, this sub-section (1)
further makes it clear that the price actually paid or payable for the goods
will not be treated as transaction value where the buyer and the seller are
related with each other. In such cases, there can be a presumption that the
actual price which is paid or payable for such goods is not the true reflec-
tion of the value of the goods. This Section also provides that normal price
would be the sole consideration for the sale. However, this may be subject

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