Sonia Overseas Pvt. Ltd. vs Union of India

Rajive Bhalla, J.—The petitioner is before us challenging order dated 16-7-2013 passed by the Assistant Commissioner of Customs, CFS,

Focal Point, Ludhiana (Respondent No. 3) primarily on a plea that the order has been passed in gross and blatant violation of Section 14 of the

Customs Act, 1962 (for short, the Act) and the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (for short, the

Rules). Counsel for the petitioner submits that the respondents have based their conclusions upon a formula/norms devised by the Commissioner of

Customs, Nhava Sheva which, in essence, denudes discretion conferred upon an Assessing Officer. The formula/norm came up for consideration

in CWP No. 9152 of 2010 - Ganesh Agro Vs. Union of India, and it was held that these norms cannot be applied mechanically without

considering the genuineness of the transaction value or value calculated as per the statute. The respondents have applied these norms without

considering genuineness of the transaction value or recording any finding that the transaction value is incorrect.

Counsel for the revenue submits, on the basis of a judgment of the Hon''ble Supreme Court in Union of India (UOI) and Another Vs. Guwahati

Carbon Ltd., that the Act is a complete code in itself and prescribes a procedure for appeals. The writ petition filed without exhausting remedies of

appeal should be dismissed. It is further submitted that the question whether the consignment was in accordance with the description assigned in

the bill of entry, has been decided after considering provisions of the Act and the Rules. The norms are merely guidelines issued to officers who

may or may not consider them and may depending upon circumstances of a case, take guidance from the norms. It is further submitted that a

perusal of the impugned order reveals that norms have not been applied mechanically or by ignoring genuineness of transaction value of goods. It is

further submitted that after notices were issued the petitioner, did not bother to put in appearance and, therefore, cannot be permitted to raise a

grievance against the impugned order without filing an appeal.

We have heard counsel for the parties and perused the complete record.

Admittedly, the impugned order is appealable. The petitioner''s argument, succinctly put is that the respondents have applied norms framed by

the Commissioner of Customs, Nhava Sheva mechanically without considering genuineness of transaction value or value as per statutory provisions

and have passed the impugned order in violation of directions issued in CWP No. 9152 of 2010 decided on 1-12-2010.

An assessment has to be finalised after considering provisions of the Act and the Rules. Norms issued by a department, as rightly asserted by

counsel for the revenue, are merely guidelines. A guideline whether styled as a norm or an instruction, is framed for guidance and, therefore, cannot

replace statutory provisions. The necessity to issue guidelines and instructions arises from the extremely complicated taxation regime which more

often than not is incomprehensible even to experts. The confusion is confounded by repeated amendments, clarifications, instructions and norms,

etc. Be that as it may, norms, guidelines and directions cannot replace provisions of the statute or the Rules.

The impugned order is admittedly appealable. The petitioner is, therefore, relegated to the remedy of filing the appeal. In case the appeal is

barred by limitation, the petitioner''s application for condonation of delay shall be considered sympathetically taking into consideration pendency of

the writ petition and every endeavour shall be made to decide the appeal on merits. The application for condonation of delay shall be decided

within 15 days of its filing. The petition is disposed of accordingly.