LAHORE FEEDS LIMITED VS CUSTOMS SALES TAX AND CENTRAL EXCISE APPELLATE TRIBUNAL, 2015 PTD-LAHORE-HIGH-COURT-LAHORE 1286 (2015)

(a) Customs Act (IV of 1969)---

----Ss. 25 & 196---Customs Rules, 2001, R. 109---Reference to High Court---Transaction value---Determination---Burden to prove---Grievance of importers was that customs authorities did not rely upon their declarations and resorted to modes to determine transaction value of goods imported by them---Plea raised by importers was that in absence of allegation of under valuation, the authorities should have accepted declared value for the purposes of customs duty---Validity---Customs authorities had power to determine transaction value of imported goods, if customs value of such goods could not be determined under provisions of S. 25(1) of Customs Act, 1969, for any reason---Provisions of S. 25(5) & (6) of Customs Act, 1969, triggered as soon as any doubt had arisen as to correct customs value of imported goods---Once doubts were raised as to truth or accuracy of particulars or of documents produced in support of declaration by importer, the burden to proof shifted to importer---High Court declined to interfere in decision of customs authorities---Reference was dismissed in circumstances.

Rehan Umar v. Collector of Customs, Karachi and 2 others 2006 PTD 909; Constitutional Petition No.2673 of 2009; Muhammad Ashfaq v. Federation of Pakistan and 2 others 2007 PTD 198; Messrs Najam Impex, Lahore through Sole Proprietor v. Assistant Collector of Customs, Karachi and 4 others 2008 PTD 1250 and Karachi Bulk Storage and Terminal (Pvt.) Ltd. v. Controller of Customs (Valuation), Karachi and another 2004 PTD 2592 ref.

(b) Customs Act (IV of 1969)---

----S. 25---Transaction value---Determination---Procedure---Firstly, primary method of determining customs value is transaction value; secondly, if transaction value cannot be determined, then secondary methods are to be applied sequentially, in the order set forth in S. 25 of Customs Act, 1969, itself; thirdly, where appropriate officer had reason to doubt truth and accuracy of particulars or of documents produced in support of declaration, such officer may ask importer to provide further documents or other evidence, such is the stage where burden shifts to importer; fourthly, reason to doubt truth and accuracy must be based on evidence and material in hands of customs authorities and mere doubt without more, does not do and fifthly, if evidence is not rebutted adequately by importer, customs authorities may proceed to assess customs value of goods on the basis of secondary method of valuation.

(c) Customs Act (IV of 1969)---

----S. 196---Reference to High Court---Non-framing of question of law---Effect---When an issue is not framed as question of law for determination of High Court, in reference application, High Court is not bound to consider and adjudicate upon such question.

Malik Ahsan Mehboob for Applicant.

Syed Tahir Abbas Rizvi for Respondents.

Date of hearing: 23rd February, 2015.

JUDGMENT

SHAHID KARIM, J.---This single judgment shall decide the instant application (Custom Reference No.23/2006) as well as connected Custom References, a list of which is attached with this judgment as "Schedule A".

2.These are applications under section 196 of the Customs Act, 1969 (Act) by way of reference against a consolidated judgment dated 20-2-2006 (impugned judgment) passed by the Customs Sales Tax and Central Excise Appellate Tribunal (Tribunal).

3.These reference applications have been filed by Lahore Feeds Limited, Olympia Feeds Limited and Punjab Feeds Limited and all of these emanate from the same Order-in-Original No.2 of 2003 dated 2-8-2003.

4.Show-cause notices dated 7-7-2003 bearing different numbers were issued to the applicants in respect of different bills of entry of different dates. However, as submitted, the date of the show-cause notices was the same viz. 7-7-2003. The show-cause notices were adjudicated upon and disposed of by Order-in-Original No.2 of 2003 dated 2-8-2003 by a joint order. Appeals were filed against the said order-in-original which appeals were dealt with and dismissed by an Order-in-Appeal No.64/2005 by the Collector of Customs, Sales Tax and Central Excise Adjudication (Appeals), Lahore on 14-4-2005. Second appeals were filed by the applicants which were also dealt with and dismissed by a common order dated 20-2-2006 by the Tribunal. The present applications challenge the order of the Tribunal which has been impugned herein.

Relevant Facts:

5.The facts are uncomplicated and do not present much difficulty. However, the bills of entry have different numbers in each case and so the show-cause notices have been issued for each bill of entry, a list of which is attached with the order-in-original. Moreover, the declared value of the goods and the assessed value are also different in each case. That these are different will not be a relevant factor and we need not to go into each bill of entry or assessed value. This case turns on a common question of law which has been raised in all of these cases. Moreover, these cases have been dealt with together by the forums below and, therefore, it is not necessary to narrate the facts separately. However, in the Schedule "A" attached with this judgment, matters relating to separate bills of entry, the declared value by the applicants and the assessed value has been given.

6.The applicants filed bills of entry of different dates at Railway Station, Lahore to seek clearance of a consignment of Soya Bean meal imported from India at different declared values ranging between 171 US$ /M. Ton and 206 US$/M. Ton. The value for assessment purpose was, however, increased at a rate different from the declared value by the applicants. This was done on the ground that in the corresponding period, the declared value of comparable export was higher and, therefore, the Customs Authorities assessed the imports at the value of goods of the corresponding period. A Constitutional Petition No.17862/2002 was filed to challenge the said enhancement of value before this Court which was disposed of with certain directions. It is the case of the applicants that those directions were not complied with and, therefore, the applicants were constrained to file a contempt petition for the enforcement of the order passed in Writ Petition No.17862/2002. The said contempt petition was disposed of vide order dated 12-6-2003 with the direction that the department should, without fail, deal with and take a decision upon the request of the petitioners made as per their letters dated 6-1-2003 and 4-5-2003 within a period of thirty days. In compliance with the directions of this Court, the applications were moved on June, 2003. In short, adjudication proceedings were commenced and as a consequence of those proceedings, the declared value was increased as brought forth above on the basis of comparable imports made physically at Railway Station, Lahore during the corresponding period. The following common questions of law have been urged to arise in these reference applications:--

(i)Whether the respondent customs authorities are entitled to enhance value of imported goods for the purpose of levying custom duties by opting for secondary modes of valuation instead of the primary mode in cases where declared invoice value is paid under Letters of credit through banking channels especially in view of section 25(1) of the Customs Act, 1969?

(ii)Whether the respondents/customs authorities are justified in treating the applicant's case under subsections (4) and (6) of section 25 of the Customs Act, 1969 read with Rule 107(A) instead of subsection (1) of Section 25 of the Customs Act, 1969 read with Rule 113 of the Customs Rules, 2001 notified vide S.R.O. 450(I)/2001 dated 18-6-2001, especially in view of the fact that none of the conditions of the subsections (4) and (6) of Section 25 of the Customs Act, 1969 were fulfilled and also because the price of the goods payable was the total price actually paid through Letter of credit, a recognized banking channel?

(iii) Whether the respondent customs authorities have not erred by determining the normal/fair price of imported goods in view of the value of goods imported for time periods different from the applicant's contract as well as transaction date?

(iv)Whether the relevant date for assessing the transaction value is not the date of contract entered into for the purpose of importing goods and whether the customs authorities have not fallen into gross error of law by considering the date of bills of entry for determining the value of goods through secondary modes?

Applicants' Counsel's submissions:

7.The learned counsel for the applicants submits that the transactions in respect of the imports in issue in these reference applications were conducted through commercially acceptable documents under the law. In all of these transactions letters of credit were opened and bills of entry were duly filed. The payments were all made through banking channels and the commercial invoices have been attached with these reference applications in all cases. He submits that there are two methods of valuation under the dispensation of the Act. First is the primary method of valuation and the other is secondary method of valuation. According to the learned counsel, the cases of the applicants were to be governed by the primary method of valuation and secondary method resorted by Customs Authorities is without lawful authority and ultra vires. He relies upon section 25(1) of the Act and Rule 113 of the Customs Rules, 2001 (Rules, 2001) for the proposition that the transaction value of the imported goods shall be the price actually paid or payable for the goods when sold for export to Pakistan. This, for the purpose of section 25(1) of the Act and primary method of valuation established the customs value of imported goods. He submits that in the absence of allegation of under valuation, the department should have accepted the declared value by the applicants for the purposes of customs value of the imported goods and unless it was held as a matter of fact that the contract value was fraudulent, illegal or collusive, the respondents could not have applied the secondary method of valuation. Further submits that:--

(i)No evidence was shown that the transaction value of the consignment was fraudulent or false.

(ii)The respondent could not rely on the previous transactions since the imported goods is a seasonal commodity and its price varies on that account.

(iii)No evidence has been provided to reject the commercial documents presented by the applicants and the contents as to rate etc mentioned therein.

(iv)The department is under an obligation to prove that the invoice price is not genuine.

Respondent's Counsel's submissions:

8.The learned counsel for the respondent submits that the assessment has been undertaken lawfully and upon cogent reasons. The department was within its right to assess the value of the goods on the corresponding period of 90 days as mentioned in Rule 107 of the Rules, 2001. According to him, evidence was produced to demonstrate that the transactional value was different and it was not alleged that the goods were of different specifications. He lastly submitted that the department was correct in relying upon the secondary method of valuation and subsection (6) of section 25 of the Act based on similar goods for the corresponding period and there was no reason to proceed under subsection (5) of section 25 of the Act.

Determination:

9.Before we proceed to determine the issues of law raised in the instant reference applications, the relevant portions of section 25 are being reproduced as under:--

"Transaction Value.--The customs value of imported goods, subject to the provisions of this section and the rules, shall be the transaction value, that is the price actually paid or payable for the goods when sold for export to Pakistan:'

..

"(5) TRANSACTION VALUE OF IDENTICAL GOODS.---If the customs value of the imported goods cannot be determined under the provisions of subsection (1), it shall, subject to rules, be the transaction value of identical goods sold for export to Pakistan and exported at or about the same time as the goods being valued.

(a)In applying the [provisions] of this subsection, the transaction value of [the] identical goods in a sale at the same commercial level and substantially the same quantity as the goods being valued shall be used to determine the customs value of imported goods.

(b)Where no sale referred to in clause (a) is found, the transaction value of identical goods sold at a different commercial level and/ or in different quantities, adjusted to take account of differences attributable to commercial level and/or to quantity shall be used, provided that such adjustments can be made on the basis of demonstrated evidence which clearly establishes the reasonableness and accuracy of the adjustment, whether the adjustment leads to an increase or decrease in the value.

(c)Where the costs and charges referred to in clause (a) of subsection (2) are included in the transaction value of identical goods, an adjustment shall be made to take account of significant differences in such costs and charges between the goods being valued and the identical goods in question arising from differences in distances and modes of transport.

(d)If, in applying the provisions of this subsection, there are two or more transaction values of identical goods that meet all the requirements of this subsection and clauses (b),(d),(e) and (f) of subsection (13), the customs value of the imported goods shall be the lowest such transaction value, adjusted as necessary in accordance with clauses (b) and (c).

[(6) TRANSACTION VALUE OF SIMILAR GOODS.---If the customs value of the imported goods cannot be determined under the provisions of subsection (5), it shall, subject to clauses (c), (d), (e) and (f) of subsection (13) and rules, be the transaction value of similar goods sold for export to Pakistan and exported at or about the same time as the goods being valued, and the provisions of clauses (a), (b), (c) and (d) of subsection (5) shall, mutatis mutandis, also apply in respect of similar goods.]

10.For facility, Rule 107 (a) of the Rules 2001 is also reproduced as under:--

'107. Definitions.--In this Chapter, unless there is anything repugnant in the subject or context,- (a) "at or about the same time" means within ninety days prior to the importation or within ninety days after the importation of goods being valued;

11.We would also like to refer to the findings of the Tribunal in this regard, which are as follows:--

"It appears to us that the learned Collector (Appeals) gave reference of the bill of entry bearing No.02740 relating to M/s. Olympia Feeds Lahore in which the declared value and assessed value at the rate of US$ 220/M.Ton was the same and when it was compared with value in case of bill of entry No.03780 dated 1-6-2001 the difference in declared value was found despite of the fact that hardly 3 months or 90 days had passed to import under bill of entry No.03780 therefore, according to him the prosecution had sound evidence for comparison and for enhancement of the value, the learned counsel for the appellant gave reference of information obtained from the solvent extractors association of India and market of traders as per Chicago Board of Traders and relied upon the cases reported in PLD 1959 Supreme Court ( Pak ) 364, 1992 SCMR 1083 (Supreme Court of Pakistan), PLD 1990 Karachi 378, PLD 1989 Lahore 89, PLD 1989 Lahore 93, PLD 1988 Lahore 313, PLD 1988 Lahore 32. In our view rate as given in any price list of international market may be taken into consideration for comparison when the documentary evidence is not available in Pakistan in case of imports taken place within the prescribed period. The arguments advanced by the learned counsel for the appellant carries no force and Order-in-Appeal No.64/05 dated 14-4-2005 calls for no interference so-far-as the appellants as mentioned above having identical facts are concerned.

In view of the above discussion Order-in-Appeal No.64/05 dated 14-4-2005 is upheld and these appeals being without merits are hereby dismissed."

12.The fundamental submission of the learned counsel for the applicants is that since the imports of the goods in issue had been made by valid letters of credit and payments made through banking channels, it was unlawful for the respondent-department to have fallen back on the secondary method of valuation and the custom value of the imported goods should have been taken as the transaction value. The entire reliance of the learned counsel is based on the plea that under the current dispensation of the customs laws the transaction value has to be taken as the customs value of the imported goods and only in exceptional circumstances can resort to the secondary method of valuation be had. However, the learned counsel has not pointed out to any prohibition contained in section 25 of the Act which would substantiate the arguments advanced by the learned counsel. If the argument of the learned counsel for the applicants is accepted, then in all cases where the imported goods are brought into Pakistan on letters of credit and payment made through banking channels, the customs authorities would be debarred from making any assessment other than the transaction value given by the importers. This would render the rest of the section 25 of the Act nugatory and redundant. For the purpose, section 25 of the Act will have to be read holistically and by taking the different provisions of that section together and not independent of each other. It is true that by subsection (1) of section 25 of the Act, the customs value of the imported goods shall be the transaction value, i.e. the price in actual paid or payable for the goods when sold for export to Pakistan yet this, by no means, is the final valuation of the imported goods. It is always subject to different shades of the provisions of section 25 of the Act. Subsections (5) and (6) are the secondary methods of valuation and they can be relied upon "if the customs value of the imported goods cannot be determined under the provisions of subsection (1)". This means that the customs authorities have the power to determine the transaction value of the imported goods if the customs value of those goods cannot be determined under the provisions of subsection (1) for any reason. Therefore, subsections 5 and 6 shall be triggered as soon as any doubt arises as to the correct customs value of the imported goods. The only question that remains is regarding the circumstances which must exist before customs can make use of the secondary method of valuation.

13.In the instant cases, the customs department did not accept the transaction value of the imported goods as given by the applicants. They had a reasonable basis for not so accepting that value. According to the case set up in the show-cause notice, the declared value was increased in the context of the comparable imports made physically at Railway Station, Lahore during the corresponding period. The precise words used in subsection (6) are "at or about the same time". These words have been defined in Rule 107(a) of the Rules, 2001 reproduced above and the term means "within 90 days prior to the importation or within 90 days after the importation of the goods being valued". This was the basis on which the department proceeded against the applicants. There was evidence to show that during the 90 days preceding the present import, the customs value of the goods was different and ranged around US$ 220/M/Ton and on which the applicants had deposited the amount of custom duty.

14.These evidential bills of entry were produced by the department and the forums below have relied upon these bills of entry to hold that the customs value had to be assessed on the basis of goods imported at or about the same time as the goods being valued.

15.It is not denied by the learned counsel for the applicants that the transactions in question had a different value from the transactions which has been relied upon by the department to assess the imported goods. However, the applicants did not bring forth any evidence to rebut the evidential bills of entry which were produced by the department. The learned counsel for the applicants has asserted that the imported goods were a seasonal commodity and the price of which was subject to fluctuation in the international market. However, no evidence is forthcoming from the applicants' side to establish the considerable fluctuation in the price during the period of 90 days for the two imports which have been made the benchmark by the department while calculating the customs value of the imported goods.

16.In this regard, rules 108 and 109 of the Rules 2001 would come into play and are reproduced hereunder:--

'108. Declaration by the importer. The importer, or his agent, shall furnish-

(a)a declaration disclosing full and accurate details relating to the value of imported goods; and

(b)any other statement, information or document as considered necessary by the appropriate officer for determination of the value of imported goods under the Act and this chapter.

109. Burden of proof.---

(1)Where the appropriate officer has reason to doubt the truth or accuracy of the particulars or of documents produced in support of the declaration, such officer may ask the importer to provide further explanation, including documents or other evidence.

(2)If, after receiving information referred to in sub-rule (1) or in the absence of a response, the appropriate officer still has reasonable doubts about the truth or accuracy of the declared value, it may be deemed that the customs value of the imported goods cannot be determined under the provisions of subsection (1) of section 25 of the Act.

(3)When a final decision is made, the appropriate officer shall communicate to the importer in writing his decision and the grounds therefor."

17.It is clear from a perusal of the rules, reproduced above, that where the appropriate officer has reason to doubt the truth or accuracy of the particulars or of documents produced in support of the declaration, such officer may ask the importer to provide further explanation or other evidence etc. In case the appropriate officer still has reasonable doubts about the truth or accuracy of the declared value, it may be deemed that the customs value of the imported goods cannot be determined under the provisions of subsection (1) of section 25 of the Act. These rules, in our opinion, should take care of the objections raised by the applicants that there is no power in the hands of the customs officer to resort to the secondary method of valuation and the transactional value declared by the importer has to be taken as customs value of the imported goods. This also brings forth clearly that the burden of proof shifts to the importer once doubts are raised as to the truth or accuracy of the particulars or of documents produced in support of the declaration by the importer. The question, therefore, now boils down to whether the applicants had produced sufficient evidence to allay and rebut that doubt.

18.Before that, we will advert to the case-law and rulings referred to by the learned counsel for the applicants. In Rehan Umar v. Collector of Customs, Karachi and 2 others (2006 PTD 909), the challenge to the value was on the basis that the valuation advice on the basis of which the consignment imported by the petitioner was valued was not a document of legal status and the method adopted for determination of the value of imported consignment on the basis of valuation advice/assessment module was illegal and without lawful authority. Also that the respondents in that case had committed an error in resorting to subsection (7) of section 25 directly on the basis of so called assessment module without resorting to the earlier subsections. The Karachi High Court proceeded to hold as under:--

"The rules envisage inquiry in case of each import giving right to each importer to provide explanation and produce documents or other evidence in support of his/her declaration. When the provisions contained under section 25 (1) of the Customs Act and the rules are read with sections 79 and 80 of the said Act, they lead to same conclusion. Under section 79 the owner of any imported goods is required to file a goods declaration containing correct and complete particulars of the goods and its assessment i.e. valuation of the goods, its value and the duty, taxes and other charges payable thereon. Under section 80 on the receipt of goods declaration under section 79, an office of the Customs shall satisfy himself of the correctness of the import including declaration and assessment. It indicates that initially the valuation of goods and assessment is to be given by the importer himself, which, if found satisfactory, shall be accepted. However, if the appropriate officer is not satisfied with the said declaration, he shall make his own assessment in accordance with the law. This exercise cannot be done without examination of each consignment, declaration of goods examination of assessment given by importers and of the documents in this behalf "

19.The learned counsel next relied upon an unreported judgment of the High Court of Sindh, Karachi in Constitutional Petition No.2673 of 2009 which was a judgment rendered on the interpretation of section 25(A) of the Act. While discussing the issue, the Division Bench of the High Court of Sindh narrated the history and the source of section 25 of the Act. For our purposes, the relevant portion is reproduced as under:--

"Three points may be noted. Firstly, the primary method of determining the customs value is the transaction value, i.e., the price actually paid or payable for the imported goods. (The price actually paid or payable may be subject to certain adjustments, but this aspect of the matter need not be considered in detail.) This is duly recognized in terms of both Article 1 of the Valuation Agreement, and subsection (1) of section 25. Secondly, if the transaction value cannot be determined, then the subsequent methods are to be applied sequentially, in the order set forth in the Valuation Agreement. As is clear from the table above, the relevant subsections of section 25 are arranged in the same sequence. Thirdly, and this is of crucial importance for present purposes, the exercise must stop at the first method which is found applicable. It is neither permissible nor necessary to go on to, or to consider, any of the succeeding methods. In this context, it will be noted that the opening words of each of subsections (5), (6), (7), (8) and (9) expressly provide that the subsection is to apply only if "the customs value of the imported goods cannot be determined under" the preceding applicable subsection. In other words, it is not permissible to resort to a particular subsection unless it is first concluded that the previous subsection referred to does not apply, and it is not permissible to apply the latter unless it is first concluded that the subsection preceding it does not apply, and so on. Thus, all the elements of the principle of sequential application are clearly embedded in section 25."

20.These judgments lay down that the provisions contain in various subsections of section 25 of the Act are to be applied in sequential order. This is the mandate of section 25 and has been recognized by the courts in the judgments cited above. To the same effect is Muhammad Ashfaq v. Federation of Pakistan and 2 others 2007 PTD 198, Messrs Najam Impex, Lahore through Sole Proprietor v. Assistant Collector of Customs, Karachi and 4 others (2008 PTD 1250) and Karachi Bulk Storage and Terminal (Pvt.) Ltd. v. Controller of Customs (Valuation), Karachi and another (2004 PTD 2592), relied upon by the learned counsel for the applicants.

21.In the judgments cited above by the learned counsel for the applicants, the overwhelming view is that the provisions of section 25 are to be applied in sequential order and the action can be taken and determined on the basis of steps given in the said section. However, the judgments also agree that the department can resort to secondary method of valuation if it was in possession of sufficient material on the basis of which it could be said that the department had rightly come to the conclusion that the declared value of the goods was not the transactional value mentioned in the commercial documents of the importer. It was only when the enhancement of the value was without any satisfactory evidence of any import of identical goods at or about the same time as the goods being valued that it was held by the courts not to be in consonance with the terms and tenor of section 25 of the Act. It would become apparent upon a reading of the case-law cited by the learned counsel for the applicants that in the said cases the department did not proceed on the basis of cogent and reliable evidence in the assessment of the goods and, therefore, it was held that the action was without lawful authority.

22.In the instant cases, the departments has not only relied upon but produced evidence of contemporaneous period as contemplated by rule 107(a) of the Rules 2001 which showed the variation in the prices of the imported goods which were similar in nature. Customs authorities, therefore, proceeded on the basis of secondary method of valuation and relying upon subsection (6) of section 25 of the Act proceeded to assess the transaction value of the imported goods on the basis of similar goods sold for export to Pakistan at or about the same time as the goods being valued. The similar goods were none other than the goods which the applicants had imported during that period. A chart depicting the evidence of the earlier imports has been given at page 3 of the order-in-original.

23.The learned counsel for the applicants argued that the department had to proceed in a sequential manner and even if it did not agree with the transactional value of the importer it had to proceed first under subsection (5) of section 25 of the Act before it could make an assessment in terms of subsection (6) of section 25. This issue has not been raised as a question of law in these reference applications before us and it is not necessary to deal with this issue. This issue does not also arise from the impugned order of the Tribunal and the applicants cannot be heard to raise the issue for the first time in these proceedings.

24.A combined reading of section 25, the Rules 2001 and the case law expounding the true construction of section 25 brings forth the scheme of the section 25 thus: Firstly, the primary method of determining the customs value is the transaction value; secondly, if the transaction value cannot be determined, then the secondary methods are to be applied sequentially, in the order set forth in the section itself. Thirdly, where the appropriate officer has reason to doubt the truth and accuracy of the particulars or of documents produced in support of the declaration, such officer may ask the importer to provide further documents or other evidence. This is the stage where the burden of proof shifts to the importer. Fourthly, the reason to doubt the truth and accuracy must be based on evidence and material in the hands of the customs and mere doubt without more will not do. Fifthly, if the evidence is not rebutted adequately by the importer, customs may proceed to assess the customs value of the goods on the basis of secondary method of valuation.

25.The learned counsel for the applicants lastly contended that the evidence produced in rebuttal by the applicants has not been considered properly by the forums below. This issue has not been framed as question of law for the determination of this Court in the reference applications and we are not bound to consider and adjudicate upon the contention raised by the learned counsel. However, it will be mentioned that the applicants produced a weekly price trend for the year 2001 obtained by the Solvent Extractors Association of India and market trends as per Chicago Board of Traders. These documents are general in nature and do not lend support to the case of the applicants. Moreover, these documents have not been placed on the record of the reference applications and we are not in a position to take notice of these documents or the contents thereof. It is also important to notice that the questions of law which have been framed are couched in a language which challenges the acts of the respondent-customs authorities whereas they should have been framed as questions of law arising out of the order of the Tribunal.

26.Another important factor which impacts the decision of the reference applications is that as many as 48 appeals filed by the applicants were accepted by the first appellate forum precisely on the ground that the department did not have sufficient evidence in its hands to resort to secondary method of valuation. Therefore, it is apparent that the assessments made by the customs department were not without any legal and factual basis.

27.In view of the above, the questions of law sought to be raised in these reference applications are answered accordingly and the reference applications are hereby dismissed.

A copy of this judgment shall be sent to the Tribunal under seal of the Court.

(Schedule 'A')

LIST OF CASES

MH/L-2/LReference dismissed.