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Monday, April 20, 2015

constitutional validity of proviso (II-i) of Rule 9(2) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (hereinafter referred to as the "Valuation Rules"). This proviso has been inserted by Notification No.39/90 dated 05.07.1990 issued by the Ministry of Finance, Department of Revenue, Union of India. As per the appellant, this proviso is not only ultravires Section 14(1) and Section 14(1-A) of the Customs Act, 1962 (hereinafter referred to as the 'Act') but is also violative of Article 14 and Article 19(1)(g) of the Constitution of India.= We are, therefore, of the opinion that impugned amendment, namely, proviso (ii) to sub-rule (2) of Rule 9 introduced vide Notification dated 05.07.1990 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. 37) As a result, judgment of the High Court is set aside and the appeals are allowed in the aforesaid terms with no order as to cost.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO(S). 9766-9775 OF 2003


|WIPRO LTD.                                 |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|ASSISTANT COLLECTOR OF CUSTOMS & ORS.      |.....RESPONDENT(S)           |

                                   W I T H

                    CIVIL APPEAL NO(S). 1950-1951 OF 2004

                               J U D G M E N T

A.K. SIKRI, J.
                 These appeals are preferred by  the  appellant  challenging
the validity of judgment dated 11.10.2002 passed by the  Division  Bench  of
the High Court of Judicature at Madras.  The High Court has, vide  the  said
judgment, disposed of few writ petitions filed  under  Article  226  of  the
Constitution of India as well as  certain  writ  appeals  which  were  filed
against the orders of the single Judge.  All the  aforesaid  writ  petitions
and writ appeals were preferred by the appellants herein.

2)    The subject matter  of  those  writ  petitions/writ  appeals  was  the
constitutional validity of proviso  (II-i)  of  Rule  9(2)  of  the  Customs
Valuation  (Determination  of  Price  of   Imported   Goods)   Rules,   1988
(hereinafter referred to as the "Valuation Rules").  This proviso  has  been
inserted by Notification No.39/90 dated 05.07.1990 issued  by  the  Ministry
of Finance, Department of Revenue, Union of India.  As  per  the  appellant,
this proviso is not only ultravires Section 14(1)  and  Section  14(1-A)  of
the Customs Act, 1962 (hereinafter referred to as the  'Act')  but  is  also
violative of Article 14 and Article 19(1)(g) of the Constitution  of  India.
The challenge, however, stands repelled by the High Court  in  the  impugned
judgment leading to dismissal of writ petitions and writ appeals.   This  is
how these appeals have come up in this Court,  via  special  leave  petition
route, in which leave was granted.

3)    In order to understand the controversy, purpose  would  be  served  in
taking note of the facts from the Writ Appeal No.1079/2000 which  was  filed
by the appellant in the  High  Court.   The  appellant  is  engaged  in  the
manufacture and marketing of Mini and Micro Computer Systems and  peripheral
devices like  printer,  drivers  etc.   It,  inter  alia,  imported  various
components including software from time to time.  The appellant presented  a
Bill of Entry No.15020 dated  15.04.1993.   The  chargeable  weight  of  the
consignment was 315 kgs and  the  actual  loading,  unloading  and  handling
charges amounted to Rs.65.40 paisa as per the tariff  of  the  International
Airport Authority of India, Madras  (now  Chennai).   However,  the  Customs
Authorities, on the basis of  the  impugned  notification  added  a  sum  of
Rs.15,214.69 paisa to the value of the goods  as  handling  charges  as  the
impugned provision entitles the authorities to add 1% of  the  F.O.B.  value
of goods on account of loading, unloading and handling charges.  The  actual
duty charged,  as  a  consequence  of  addition  of  the  notional  handling
charges, amounted to Rs.16,209.20 paisa instead of Rs.69.98 paisa.

4)    At this juncture, instead  of  proceeding  further  with  the  factual
narration, we would like to deviate a bit and  take  note  of  the  relevant
valuation rules and the amendments made therein from time  to  time.   These
rules are made in exercise of powers conferred  under  Section  156  of  the
Customs Act, 1962, read with Section 22 of the General  Clauses  Act,  1897.
The purpose of these rules is to arrive at the  valuation  of  the  imported
goods to enable the customs authorities  to  levy  duty  thereupon,  on  the
basis of the value so  arrived  at.   Rule  2  is  the  "definition"  clause
whereunder certain  terms  are  defined.   Rule  2(f)  defines  "transaction
value" to mean the value determined in  accordance  with  Rule  4  of  these
Rules.  This is to be read along with  Rule  3.   We,  therefore,  reproduce
Rule 3 and relevant portion of Rule 4 hereunder:
"3.  Determination of the method of valuation-
      For the purpose of these rules, -
(i) the value of imported goods shall be the transaction value;
(ii)  if the value cannot be determined under the provisions of  Clause  (i)
above, the value shall be  determined  by  proceeding  sequentially  through
Rules 5 to 8 of these rules.

4.  Transaction Value - (1)  The transaction value of 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.

(2)  The transaction value of imported goods under sub-rule (1) above  shall
be accepted.
Provided that ........."

5)    A conjoint reading of the  aforesaid  two  provisions  would  make  it
clear that the value of the imported goods has to be the  transaction  value
and in those cases where transaction value  cannot  be  determined,  such  a
value is to be determined by  resorting  to  Rules  5  to  8  thereof  in  a
sequential  order.   Therefore,  first  attempt   has   to   ascertain   the
transaction value.  As per the formula contained in sub-rule (1) of Rule  4,
the authorities are to find out the price actually paid or payable  for  the
goods when sold for exports to India, to arrive at the value of  the  goods.
Once this value is arrived at, it is to be adjusted in accordance  with  the
provisions of Rule 9 of the said Rules.  The final outcome,  after  such  an
adjustment made, is to be  treated  as  transaction  value  to  attract  the
import duty thereupon.  As per sub-rule  (2)  of  Rule  4,  the  transaction
value of the imported goods under sub-rule (1) is to be accepted, except  in
certain circumstances mentioned in proviso  to  sub-rule  (2).   If  any  of
those circumstances exists, then the value is to be determined as  per  sub-
rule (3) of Rule 4.  However, we are not concerned with such a situation  in
the present case.

6)     Thus,  normally,  the  value  of  imported  goods  has  to   be   the
transactional value which means the price "actually paid" or  "payable"  for
the goods imported.  Moreover, the value as specified in sub-rule (1) is  to
be  generally  accepted  with  the  exception   of   certain   contingencies
stipulated in proviso to sub-rule (2) of Rule 4.  Only  when  such  a  value
cannot be determined, one has to resort to Rules 5 to  8,  in  a  sequential
manner which would mean that the authorities would first  refer  to  Rule  5
and in case it is inapplicable, then Rule 6 and so on.  As per  Rule  5,  in
those cases where  the  transaction  value  is  indeterminable,  transaction
value of "identical goods" is  to  be  taken  into  consideration.   Rule  6
mentions  about  transaction  value  of  "similar  goods".   If  this   also
inapplicable then "deductive value" is to be arrived at in terms of  formula
contained in Rule 7.  If that  is  also  inapplicable,  residual  method  is
provided in Rule 8 which prescribes  that  the  value  shall  be  determined
using  "reasonable  means"  consistent  with  the  principles   of   general
provisions of these Rules and sub-section (1) of Section 14 of  the  Customs
Act and on the basis of data available in India.  At  the  same  time,  sub-
rule (2) of Rule 8 excludes certain methods which are not to be  applied  to
determine the value under these Rules.  Precise language of sub-rule (2)  of
Rule 8 is reproduce as under:
"2.  No value shall be determined under the provisions  of  these  rules  on
the basis of -
(i)  the selling price in India of the goods produced in India;
(ii)        a system which provides for the acceptance for customs  purposes
of the highest of the two alternative values;
(iii)  the price of the goods on the  domestic  market  of  the  country  of
exportation;
(iv)  the price of the goods for the export to a country other than India;
(v)   minimum customs values; or
(vi)        arbitrary or fictitious values."

7)    Once the transaction value is  arrived  at  by  applying  the  formula
applicable in a given case in terms  of  aforesaid  provision,  exercise  is
still incomplete.  Adjustments to  this  value  are  still  to  be  made  in
accordance  with  the  provision  of  Rule  9.    Only   thereafter,   exact
"transaction value" gets determined on which customs duty  is  to  be  paid.
It is so stated in Rule 4 itself.  So, at this  stage,  Rule  9  comes  into
play, with which we are concerned in the present case.  It deals with  "cost
of services".  It lays down that in  determining  the  transactional  value,
cost of certain services is to be  added  to  the  price  actually  paid  or
payable for the imported goods, as mentioned in clauses (a) to (e)  of  sub-
rule (1) of Rule 9.  We would like to reproduce this Rule, as it  originally
stood, in its entirety:
"9. Cost of services - (1)  In  determining  the  transaction  value,  there
shall be added to the price  actually  paid  or  payable  for  the  imported
goods, -
(a)  the following cost and services, to the extent  they  are  incurred  by
the buyer but are not included in the price actually  paid  or  payable  for
the imported goods, namely -
(i) commissions and brokerage, except buying commissions;
(ii)  the cost of containers which are treated  as  being  one  for  customs
purposes with the goods in question;
(iii)  the cost of packing whether for labour or materials;
(b)  the value, apportioned as  appropriate,  of  the  following  goods  and
services where supplied directly or indirectly by the buyer free  of  charge
or at reduced cost for use in connection with the production  and  sale  for
export of imported goods, to  the  extent  that  such  value  has  not  been
included in the price actually paid or payable, namely:-
(i) materials, components, parts  and  similar  items  incorporated  in  the
imported goods;
(ii)  tools, dies, moulds and similar items used in the  production  of  the
imported goods;
(iii) materials consumed in the production of the imported goods;
(iv)  engineering,  development,  art  work,  design  work,  and  plans  and
sketches  undertaken  elsewhere  than  in  India  and  necessary   for   the
production of the imported goods;
(c)  royalties and licence fees related  to  the  imported  goods  that  the
buyer is required to pay, directly or indirectly,  as  a  condition  of  the
sale of the goods being valued, to the extent that such royalties  and  fees
are not included in the price actually paid or payable.
(d)  the value of any  part  of  the  proceeds  of  any  subsequent  resale,
disposal,  or  use  of  the  imported  goods  that  accrues,   directly   or
indirectly, to the seller;
(e)  all other payments actually made or to be made as a condition  of  sale
of the imported goods, by the buyer to the seller, or  by  the  buyer  to  a
third party to satisfy an obligation of the seller to the extent  that  such
payments are not included in the price actually paid or payable.

2.  For the purposes of sub-section (1) and sub-section (1A) of  Section  14
of the Customs Act, 1962 (52 of 1962) and these  rules,  the  value  of  the
imported goods shall be the value of such goods, for delivery  at  the  time
and place of importation and shall include -
(a)   the  cost  of  transport  of  the  imported  goods  to  the  place  of
importation;
(b)  loading, unloading and handling charges associated  with  the  delivery
of the imported goods at the place of importation; and
(c) the cost of insurance :
      Provided that in the case of goods  imported  by  air,  the  cost  and
charges referred to in clauses (a), (b) and (c) above,-
(i) where such cost and charges are ascertainable, shall not  exceed  twenty
per cent of the free on board value of such goods,
(ii)  where such cost and  charges  are  not  ascertainable  such  cost  and
charges shall be twenty per cent of the free on board value of such goods;
Provided further that in the case of goods imported other than  by  air  and
the actual cost and charges referred to in clauses (a), (b)  and  (c)  above
are not ascertainable, such cost and charges shall be twenty-five  per  cent
of the free on board value of such goods.
(3)  Additions to the price actually paid or payable  shall  be  made  under
this rule on the basis of objective and quantifiable data.
(4)  No addition shall be made to the price  actually  paid  or  payable  in
determining the value of the imported goods except as provided for  in  this
rule."


8)     Rule  9  was  amended  in  the  year  1989  vide  Notification  dated
19.12.1989.  With this amendment, the provisos appearing below sub-rule  (2)
of Rule 9 were substituted with the following proviso:
      "Provided that -
(i) Where the cost mentioned in clause (a) are not ascertainable, such  cost
shall be twenty per cent of the free on board value of the goods;
(ii)  Where the charges mentioned at clause (b) are not ascertainable,  such
charges shall be one per cent of the free on board value of the goods;
(iii)  Where the cost mentioned at clause (c) are  not  ascertainable,  such
cost shall be 1.125% of free on board value of the goods.
Provided further that in the case of goods imported by air, where  the  cost
mentioned in clause (a)  are  ascertainable,  such  cost  shall  not  exceed
twenty per cent of free on board value of the goods."

9)    In the year 1990 i.e. vide amendment  Notification  dated  05.07.1990,
the said provisos underwent further modification with  the  substitution  of
following provisos:
"Provided that -
(i)  Where  the  cost  of  transport  referred  to  in  clause  (a)  is  not
ascertainable, such cost shall be  twenty per cent  of  the  free  on  board
value of the goods;
(ii)  the charges referred to in clause (b) shall be one  per  cent  of  the
free on board value of the goods plus the cost of transport  refered  to  in
clause (a) plus the cost of insurance referred to in clause (c);
(iii)  Where the cost referred to in clause (c) is not  ascertainable,  such
cost shall be 1.125% of free on board value of the goods;
Provided further that in the case of goods imported by air,  where  th  cost
referred to in clause (a) is  ascertainable,  such  cost  shall  not  exceed
twenty per cent of free on board value of the goods;
Provided also that where the free  on  board  value  of  the  goods  is  not
ascertainable, the costs referred to in clause (a) shall be twenty per  cent
of the free on board value of the goods plus cost of  insurance  for  clause
(I) above and the cost referred to in clause (c)  shall  be  1.125%  of  the
free on board value of the goods plus cost of  transport  for  clause  (iii)
above."

10)   Clause (ii) of first  proviso,  as  is  clear  from  reading  thereof,
mandated addition of one per cent of the free on board value  of  the  goods
plus the cost of transport referred to  in  clause  (a)  plus  the  cost  of
insurance referred to in clause (c).

11)   Reverting to the facts of the present case, it is on the  strength  of
this proviso, even when the actual handling charges were shown  as  Rs.69.98
paisa, that too  as  fixed  by  the  International  Airport  Authority,  the
customs authorities added further sum of Rs.15,214.69 paisa to the value  of
goods of handling charges, being one per cent free on  board  value  of  the
goods.   Obviously,  the  appellant  was  aggrieved  by  this  addition  and
handling charges  on  notional  basis  pursuant  to  the  aforesaid  proviso
whereby the charges for loading, unloading and handling associated with  the
delivery of imported goods at the place of importation  had  been  fixed  at
one per cent free on  board  value  of  the  goods  plus  the  cost  of  the
transport of the imported goods to the place of  importation  plus  cost  of
insurance.

12)   This became the reason for filing the writ petition in the High  Court
to question the validity of the said proviso by way of  impugned  amendment.
In brief, the case set  up  by  the  appellant  was  that  such  a  notional
fixation of the handling charges with the addition of one per cent  of  free
on board value of the value of goods, irrespective of the nature  of  goods,
size of the cargo, was in total disregard to  the  total  handling  charges,
even when such actual handling charges could be ascertained.   It  was  also
the submission of the appellant that the said one per cent so fixed  without
reference to the nature of the goods, size of the cargo  and  value  of  the
goods is irrational, in the sense,  high  value  items  like  components  of
computer, involving little or no expenses by way of handling, whereas  heavy
weight items like machinery, hardware might involve substantial  expenditure
for loading, unloading and handling.  It was  submitted  that  the  handling
services are  rendered  by  the  sea  port  and  airport  authorities.   The
handling charges are levied on the basis  of  either  the  gross  weight  or
chargeable  weight,  whichever  is   higher.    Both   these   weights   are
incidentally available in the air bill accompanying  the  consignment.   The
international Airport Authorities and the port trust are having schedule  of
tariff and the appellant have from time to time  been  paying  the  handling
charges to the authorities as per the tariff.  On this basis, it was  argued
that such an addition was totally irrational and arbitrary,  thus  violative
of Article 14 of the Constitution and was also ultravires Section 14(1)  and
Section 14(1)(A) of the Customs Act.

13)   The respondents defended the aforesaid amendment by pointing out  that
over last number of years, it was found impossible to ascertain  the  actual
amounts incurred towards  loading,  unloading  and  handling  charges  while
making the assessment as they  varied  depending  upon  the  quantities  and
place of import.  Finding this difficulty in actual practice  and  in  order
to achieve certainty, one per cent of the  F.O.B.  value  was  fixed  to  be
included in the assessable value.  It was argued that once  this  uniformity
is achieved with the aforesaid provisions, merely  because  some  would   be
getting the benefit while others  would  suffer  certain  detriment,  is  no
reason for invalidating the provision when many others would be getting  the
benefit thereof as well.  The percentage had been fixed by the  rule  making
authority after taken into consideration the overall picture.

14)   The High Court, in the impugned judgment, after referring  to  various
decisions of this Court, accepted the plea of the  Government  holding  that
rule making authority had the requisite power to make a  provision  of  this
nature by  including  landing  charges  for  the  purpose  of  valuation  as
valuation on such a basis was held to be valid by this Court in Garden  Silk
Mills Ltd. v. Union of India[1].  The justification for adding one per  cent
of F.O.B. value in determination handling  charges  can  be  discerned  from
paras 17 and 18 of the impugned judgment which read as under:
      "17.  We are not able to uphold the contents of  the  learned  counsel
for the petitioner for the reason that prior to the  impugned  notification,
the same one percent of  F.O.B.  value  was  taken  by  the  authorities  as
loading, unloading and handling charges for determination of the  assessable
value of the goods, when the actuals are  not  assessable.   Even  prior  to
that, 3/4th of the F.O.B. value has been added to the value of the goods  as
loading, unloading and  handling  charges  for  the  purpose  of  assessment
pursuant to the GATT agreement.  The one per  cent  F.O.B.  value  would  be
very nominal to the importers and that the percentage has been fixed on  the
basis of objective and quantifiable data taking onto  consideration  of  the
experience gained by the authorities and the  difficulties  in  ascertaining
the actuals.
18.  The method of collection or the manner of collection may be  prescribed
either under the Act or under the rules framed by the  delegated  authority.
In the case on hand, instead of  actuals,  rules  have  prescribed  a  fixed
percentage which in some cases may be too  harsh  where  the  value  of  the
goods imported is much more and the weight of the commodity is less.   There
may be number of other items where the value of the imported goods are  less
and weight of the commodity  is  very  much.   The  machinery  provision  so
provided  for  collection   of   duty,   taking   into   consideration   the
administrative convenience cannot be considered  beyond  the  scope  of  the
rule making power and it cannot be said to be levying duty on  amount  which
is not within the purview  of  the  Customs  Act  or  Section  14(1)  simply
because the rule making authority have prescribed a fixed  percentage  based
on experience instead of actual.
            Section 14 of the Customs Act itself made it clear the value  of
such imported goods shall be deemed to be the price at which such goods  are
ordinarily sold or offered for sale for delivery at the time  and  place  of
importation or exportation in the course  of  international  trade  and  the
price referred to shall be determined in accordance with the  rule  made  in
this behalf.  For the purpose of determination  of  the  value,  rules  have
been made and taking into consideration the difficulties experienced in  the
past in fixing the handling charges on the  actuals,  it  is  fixed  at  one
percent of the CIF value of the goods.  When the statute confers  the  power
to make rules for determination of the  value,  such  determination  of  the
value by imposition of the same as a percentage cannot  at  any  stretch  of
imagination be considered as repugant to Section 14(1) or discriminatory."

15)   The High Court in support of the aforesaid view, referred  to  certain
judgments of this Court touching upon the principle that  when  a  power  is
conferred on the Legislature to levy  a  tax,  that  power  itself  must  be
widely construed.  Reliance upon  the  judgment  in  Garden  Silk  Mills  is
placed by the High Court in the following manner:
      "19.  The Supreme Court in Garden Silk Mills Ltd. v.  Union  of  India
reported in AIR 2000 Supreme Court 33 has observed  that  Section  14  is  a
deeming provision.  The legislative intent is clear that  the  actual  price
of imported goods viz., the landing costs cannot alone be  regarded  as  the
value for the purpose of calculating the duty.  The language of  Section  14
clearly  indicates  that  though  the  transaction  value  may  be  relevant
consideration, the value for the purpose of custom  duty  will  have  to  be
determined by the customs authority, which value can be more  and  at  times
even less than what is indicated in the document of purchase or sale."

16)   Questioning the correctness of the aforesaid view taken  by  the  High
Court,  Mr.  Dushyant  Dave,  learned  senior  counsel  appearing  for   the
appellant in all  these  appeals,  submitted  that  prior  to  the  impugned
notification dated 05.07.1990, the Rule in this regard  was  to  the  effect
that the handling charges were reckoned on the actuals and  only  where  the
actual cost could not be ascertained,  one per cent of  the  F.O.B.  of  the
goods was to be added  as  charges  on  this  account.   However,  with  the
impugned  amendment  in  the  Rules,  the  actual  cost  incurred   and   or
ascertainable is totally ignored in the matter of "handling charges" and  is
to be arrived at fictionally by adding one per cent of the F.O.B.  value  of
the imported goods and its transportation and  insurance  charges.   It  was
pointed out that the appellant is engaged in the manufacture  and  marketing
of computer systems and peripherals, and in  the  course  of  its  business,
imports various components worth crores of rupees, which are of  high  value
but of low  weight  and  dimensions.   Further,  the  actual  cost  incurred
towards the handling charges in accordance with the  prescribed  charges  by
the international Airport Authority of India was not even a fraction of  the
"notional handling charges" arrived at by applying the formula contained  in
the amended Rule.  In nutshell, it was  pointed  out  that  in  the  present
case, where actual cost could be ascertained, the same had to be taken  into
consideration to determine the valuation of the goods  for  the  purpose  of
custom duty and it is only in those cases where actual  cost  could  not  be
arrived at the fictional formula should be made applicable.  Making  such  a
provision, it was argued, even where the actual cost was known  was  clearly
ultravires Section 14(1) and Section 14(1A) of  the  Customs  Act.   It  was
also argued that there was no rationale  in  adding  one  per  cent  of  the
F.O.B. value in such cases and  this  smacked  of  arbitrariness  making  it
violative of Article  14  of  the  Constitution  as  well.   Mr.  Dave  also
referred and relied upon the judgment of this Court in  Indian  Acrylics  v.
Union of India and Anr.[2] in support  of  his  aforesaid  submissions.   He
also referred to the provisions of the  General  Agreement  on  Tariffs  and
Trade (GATT) which inter  alia  laid  down  the  yardsticks/methodology  for
arriving at cost of transport and the prescription  therein  is  the  actual
cost of transport of the imported goods to the port or place of  importation
plus the handling charges and cost of insurance.

17)    Mr.  Radhakrishnan,  learned  senior  counsel   appearing   for   the
respondents, on the other  hand,  defended  the  judgment  by  adopting  the
reasoning given by the High Court sustaining the validity  of  the  impugned
provision.

18)   We have given our due consideration to the submissions of the  learned
counsel for the parties with reference to the material on record as well  as
various statutory and other provisions, placed at our disposal.

19)   In order to arrive at the answer to the issue raised,  we  shall  have
to go through the scheme  of  customs  duties  as  payable  under  the  Act.
Chapter V is the relevant chapter which deals with "Levy of,  and  Exemption
from, Customs Duties".  It  contains  the  provisions  from  Section  12  to
Section 28BA.  Section 12 which talks of  "dutiable  goods",  provides  that
duties of customs shall be levied at such rates as may  be  specified  under
the Customs Tariff Act, 1975, or any other law for the time being in  force,
on goods imported into, or exported from, India.  Thus, the rates  at  which
the customs duties is to be imposed are  specified  in  the  Customs  Tariff
Act, 1975.  That rate is on the value of goods imported or exported, as  the
case may be.  Therefore, there is a need  to  determine  the  value  of  the
goods imported and exported.  The yardsticks for arriving at this value  are
contained in Section 14 of the Act.  This provision as originally stood  and
was prevalent at the relevant time with which we  are  concerned,  reads  as
under:
"14.  Valuation of goods for purposes of assessment.- (1) For  the  purposes
of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the  time
being in force whereunder a duty of customs is chargeable on  any  goods  by
reference to their value, the value of such goods 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 or  exportation,  as
the case may be, in the course of international trade, where-
(a)   the seller and the buyer have no interest  in  the  business  of  each
other; or
(b)   one of them has no interest in the business  of  the  other,  and  the
price is the sole consideration for the sale or ofer for sale:
      Provided that such price shall be calculated  with  reference  to  the
rate of exchange as in force on the  date  on  which  a  bill  of  entry  is
presented under section 46, or a shipping bill or bill  of  export,  as  the
case may be, is presented under section 50;
      (1A)   Subject  to  the  provisions  of  sub-section  (1),  the  price
referred to in that sub-section  in  respect  of  imported  goods  shall  be
determined in accordance with the rules made in this behalf.
      (2)  Notwithstanding anything contained in sub-section  (1)   or  sub-
section (1A) if the Board is satisfied that it is necessary or expedient  so
to do, it may, by notification in the Official Gazette,  fix  tariff  values
for any class of imported goods or export goods, having regard to the  trend
of value of such or like goods, and where any such tariff values are  fixed,
the duty shall be chargeable with reference to such tariff value.
(3)  For the purposes of this section-
(a)  "rate of exchange" means the rate of exchange-
(i)   determined by the Board, or
(ii)   ascertained  in  such  manner  as  the  Board  may  direct,  for  the
conversion of Indian currency into  foreign  currency  or  foreign  currency
into Indian currency;
(b)   "foreign  currency"  and   "Indian   currency"   have   the   meanings
respectively assigned to them in clause (m) and clause (q) of section  2  of
the Foreign Exchange Management Act, 1999 (42 of 1999)."


20)   This provision was amended in the  year  2007.   Though,  we  are  not
concerned with this amended provision, we are taking note  of  the  same  in
order to examine as to whether any change, in principle,  is  brought  about
or not.  The amended provision reads as follows:
"14.  Valuation of goods.- (1) For the purposes of the  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  value
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 include, in addition to the price as aforesaid,  any  amount  paid  or
payable  for  costs  and  services,  including  commissions  and  brokerage,
engineering,  design  work,   royalties   and   licence   fees,   costs   of
transportation to the place of importation,  insurance,  loading,  unloading
and handling charges to the extent and in the manner specified in the  rules
made in this behalf:

      Provided further that the rules made in this behalf may provide for,-

(i)   the circumstances in which the buyer and the seller  shall  be  deemed
to be related;

(ii)  the manner of determination of value in respect of  goods  when  there
is no sale, or the buyer and the seller are related, or  price  is  not  the
sole consideration for the sale or in any other case;

(iii) the manner of  acceptance  or  rejection  of  value  declared  by  the
importer or exporter, as the case may  be,  where  the  proper  officer  has
reason to doubt the truth or accuracy of such value,  and  determination  of
value for the purposes of this section:

      Provided also that such price shall be calculated  with  reference  to
the rate of exchange as in force on the date on which a  bill  of  entry  is
presented under section 46, or a shipping bill of export, as  the  case  may
be, is presented under section 50.

(2)  Notwithstanding anything contained in sub-section (1), if the Board  is
satisfied  that  it  is  necessary  or  expedient  so  to  do,  it  may,  by
notification in the Official Gazette, fix tariff values  for  any  class  of
imported goods or export goods, having regard to the trend of value of  such
or like goods, and where any such tariff values are fixed,  the  duty  shall
be chargeable with reference to such tariff value."

21)   A reading of the unamended provision would show that  the  earlier/old
principle was to find the valuation of goods "by reference to their  value".
 It introduced a deeming/fictional provision by stipulating that  the  value
of the goods would be the price at which such or like goods are  "ordinarily
sold,  or  offered  for  sale".   Under  the  new  provision,  however,  the
valuation is based on the transaction  price  namely,  the  price  "actually
paid or payable for the goods".  Even when the old  provision  provided  the
formula of the price at which the goods are ordinarily sold or  offered  for
sale, at that time also if the goods in question were sold for a  particular
price, that could be taken into consideration for arriving at the  valuation
of goods.  The very expression "ordinarily sold, or offered for sale"  would
indicate that the price at which these goods are actually sold would be  the
price at which they are ordinarily sold or offered  for  sale.   Of  course,
under the old provision, under certain circumstances, the authorities  could
discard the price mentioned in the invoice.  However, that is only  when  it
is found that the price mentioned in the invoice is not  the  reflection  of
the price at which these are ordinarily sold or offered for  sale.   To  put
it otherwise, the reason for discarding the price mentioned in  the  invoice
could be only when the said price appeared to be suppressed one.  In such  a
case, the authorities could say that generally  such  goods  are  ordinarily
sold or offered for sale at a different  price  and  take  that  price  into
consideration for the purpose of levying the duty.  It  could,  however,  be
done only if there was evidence to show that ordinarily the price  at  which
these goods are ordinarily sold or offered  for  sale  is  higher  than  the
price mentioned in the  invoice.   In  fact,  this  fundamental  concept  is
retained even now while  introducing  the  concept  of  "transaction  value"
under the amended provision.  More importantly,  the  rules  viz.  Valuation
Rules, 1988 had incorporated this  very  principle  of  "transaction  value"
even under the old provision.  No doubt,  as  per  this  provision  existing
today generally the  price  mentioned  is  to  be  accepted  as  it  is  the
transaction  value.    However,   this   very   provision   stipulates   the
circumstances under which that price can be discarded.  In any case,  having
regard to the question with which we are concerned in the  present  appeals,
such a change in the provision may not have much effect.

22)   The underlying principle  contained  in  amended  sub-section  (1)  of
Section 14 is to  consider  transaction  value  of  the  goods  imported  or
exported  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 delivery 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  reflection  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  to  such  other
conditions which can be specified in the form of Rules made in this behalf.

23)   As per the  first  proviso  of  the  amended  Section  14(1),  in  the
transaction value of the imported goods, certain charges  are  to  be  added
which are in the form of amount paid  or  payable  for  costs  and  services
including commissions and brokerage,  engineering,  design  work,  royalties
and licence fees, costs of  transportation  to  the  place  of  importation,
insurance, loading, unloading and handling charges to the extent and in  the
manner which can be prescribed in the rules.   Sub-section  (2)  of  Section
14, which remains the same, is an over-riding provision which  empowers  the
Board to fix tariff values for any class of imported goods or  export  goods
under certain circumstances.  We are not concerned with this aspect  in  the
instant case.

24)   In contrast, in the unamended Section 14, we had provision  like  sub-
section (1A) which stipulated that the price referred to in sub-section  (1)
in respect of imported goods shall be determined in  accordance  with  rules
made in this behalf.  Therefore,  rules  can  be  made  in  determining  the
price.  However, these rules have to be subject to the  provisions  of  sub-
section (1), the underline principle whereof, as stated above, is  to  taken
into consideration actual price of the  goods  unless  it  is  impermissible
because of certain circumstances stipulated therein.  Keeping in  mind  this
fundamental aspect, we have to examine the scheme of  the  Valuation  Rules,
1988.

25)   It can very well be seen from the Valuation  Rules,  1988  that  these
Rules are made to facilitate arriving at the valuation of goods in  all  the
contingencies provided in sub-section (1) of Section 14.   We  have  already
reproduced  the  relevant  Rules  and  indicated  the  scheme  thereof.   To
recapitulate in brief, Rule 3 echoes the principle enshrined in  sub-section
(1) of Section 14 by mentioning that value of the imported  goods  would  be
the transaction value[3].  Likewise, Rule 4  again  reproduces  the  concept
behind sub-section (1) of Section 14 by stipulating in no  uncertain  terms,
that the transaction value shall be the price actually paid or  payable  for
the goods when sold for exports to India.  The adjustments  which  are  made
in accordance with the provisions of Rule 9 are nothing but  the  costs  and
services, as specified in first proviso to Section 14(1) of the Act.  It  is
only in those cases where value  of  the  imported  goods  i.e.  transaction
value cannot be determined, that we have to resort to Rules 5 to  8  of  the
said Rules.  The purpose of these Rules is to fix the transaction  value  of
the goods notionally.  However,  even  when  the  fiction  is  applied,  the
scheme and spirit behind Rules 5 to  8  would  amply  demonstrate  that  the
endeavour is to have closest proximity with the actual price.  That  is  why
Rules 5 to 8 are to be applied in a sequential manner,  meaning  thereby  we
have to first resort to Rule 5 and if that is not applicable  only  then  we
have to go to Rule 6 and in the case of inapplicability of Rule 6,  we  have
to resort to Rule 7 and even if that is not applicable, then  Rule  8  comes
into play.  In order to find out as to what would be the closest real  value
of the goods, Rule 5 mentions that transaction value  of  "identical  goods"
is to be taken into consideration.  Thus, wherever the  value  of  identical
goods is available, one can safely rely upon the said  value  in  the  event
transaction value of the goods in question is indeterminable.  Value of  the
identical goods is most proximate.  If that  is  also  not  available,  next
proximate value is provided in Rule 6  which  talks  of  value  of  "similar
goods".  In the absence thereof, we come to  the  formula  of  applying  the
"deductive value" as contained in  Rule  7.   In  those  cases,  where  even
deductive value cannot be arrived at, one has to resort to  residual  method
provided in Rule 8 which prescribes  that  the  value  shall  be  determined
using "reasonable means".   This  would  indicate  adopting  "Best  Judgment
Assessment"  principle.   However,   even   while   having   best   judgment
assessments, Rule 8 reminds the authorities that such  reasonable  means  or
best judgment assessments has to be in consonance  with  the  principles  of
general provisions contained in the Rules as  well  as  sub-section  (1)  of
Section 14 of the Act and also on the basis of data available in India.

26)   On the aforesaid examination of the scheme contained  in  the  Act  as
well as in the Rules to arrive at the valuation of  the  goods,  it  becomes
clear that wherever actual cost of the goods or the services  is  available,
that would be the determinative factor.   Only  in  the  absence  of  actual
cost, fictionalised cost is to be adopted.  Here again, the scheme gives  an
ample message that an attempt is to arrive at value of goods or services  as
well as costs and services which bear almost near resemblance to the  actual
price of the goods or actual price of costs and services.  That is  why  the
sequence goes from the price of identical goods to similar  goods  and  then
to deductive value and the best judgment assessment, as a last resort.

27)   In the present case, we are concerned  with  the  amount  payable  for
costs and services.  Rule 9 which is incorporated  in  the  Valuation  Rules
and pertains to costs and services also contains  the  underlying  principle
which runs though in the length and breadth of  the  scheme  so  eloquently.
It categorically mentions the exact  nature  of  those  costs  and  services
which  have  to  be  included  like  commission  and  brokerage,  costs   of
containers, cost of packing for  labour  or  material  etc.   Significantly,
Clause (a) of sub-rule (1) of Rule 9 which specifies  the  aforesaid  heads,
cost whereof is to be added to the price, again mandates that it  is  to  be
"to the extent they are incurred by the buyer".   That  would  clearly  mean
the actual cost incurred.  Likewise, Clause (e) of sub-rule (1)  of  Rule  9
which deals with  other  payments  again  uses  the  expression  "all  other
payments actually made or to be  made  as  the  condition  of  the  sale  of
imported goods".

28)   Keeping in mind this perspective, we need to look into clause  (b)  of
sub-rule (2) of Rule 9 which deals  with  loading,  unloading  and  handling
charges associated with the delivery of  imported  goods  at  the  place  of
importation, which are to be  included  to  arrive  at  the  value  of  such
imported goods.  It is these charges with which we  are  directly  concerned
with in the instant case.

29)   The provision of sub-rule (2) of Rule 9, as originally stood, made  it
clear  that  wherever  loading,   unloading   and   handling   charges   are
ascertainable i.e. actually paid or payable, it is those charges that  would
be added.  Proviso to the said Rule contained the  provision  that  only  in
the event the same are not ascertainable, it shall be 25%  of  the  free  on
board value of such goods.  In fact, sub-rule (3) of Rule 9 leave no  manner
of doubt when it mentions that additions are to be  made  on  the  basis  of
objective and quantifiable data.

30)   It would be pertinent to mention  here  that  sub-rule  (2)  talks  of
three kinds of charges.  Apart from loading, unloading and handling  charges
which are mentioned in Clause (b), Clause (a) deal with  cost  of  transport
of imported goods to the place of importation  and  Clause  (c)  dealt  with
cost of insurance.  All these costs were to be  included  on  actual  basis.
Only when such costs were not ascertainable,  proviso  got  attracted  which
stipulated that such costs and charges shall be 25% of  the  free  on  board
value of such goods.  Even when  the  aforesaid  proviso  was  amended  vide
notification dated 19.12.1989, the spirit behind the unamended  proviso  was
maintained and kept intact.  Only difference was that  instead  of  addition
of 25% of free on board value of goods in respect of all the three kinds  of
charges, under the amended proviso, this percentage fixed was  different  in
respect of each of the aforesaid charges.  As far as cost  of  transport  is
concerned, it was changed at 20% of  the  free  on  board  value  of  goods.
Insofar as loading, unloading and handling charges  are  concerned,  it  was
reduced to 1% of the free on board value of goods and in case  of  insurance
charges, the amended provision provided for such  cost  at  1.125%  free  on
board value of goods.  However, as mentioned above, the spirit  behind  this
proviso continued to be the same viz. the proviso  was  to  made  applicable
only when the actual cost was indeterminable.

31)   In contrast, however, the  impugned  amendment  dated  05.07.1990  has
changed the entire basis of inclusion of  loading,  unloading  and  handling
charges associated with the delivery of the imported goods at the  place  of
importation.  Whereas  fundamental  principle  or  basis  remains  unaltered
insofar as other two costs, viz., the cost of transportation  and  the  cost
of insurance  stipulated  in  clauses  (a)  and  (c)  of  sub-rule  (2)  are
concerned.  In  respect  of  these  two  costs,  provision  is  retained  by
specifying that they would be applicable only if  the  actual  cost  is  not
ascertainable.  In contrast, there is a  complete  deviation  and  departure
insofar as loading, unloading  and  handling  charges  are  concerned.   The
proviso now  stipulates  1%  of  the  free  on  board  value  of  the  goods
irrespective of the fact  whether  actual  cost  is  ascertainable  or  not.
Having referred to the scheme of Section 14 of the Rules  in  detail  above,
this cannot be countenanced.  This proviso, introduces  fiction  as  far  as
addition of cost of loading, unloading and  handling  charges  is  concerned
even in those cases where actual cost paid on such an account  is  available
and ascertainable.  Obviously, it is contrary to the provisions  of  Section
14 and would clearly be ultravires this  provision.   We  are  also  of  the
opinion that when the actual charges paid are available  and  ascertainable,
introducing a fiction  for  arriving  at  the  purported  cost  of  loading,
unloading and handling charges is clearly arbitrary with no nexus  with  the
objectives sought to be achieved.  On the  contrary,  it  goes  against  the
objective behind Section 14  namely  to  accept  the  actual  cost  paid  or
payable and even in the absence thereof to arrive at the cost which is  most
proximate to the actual cost.  Addition of 1% of  free  on  board  value  is
thus, in the circumstance, clearly arbitrary and  irrational  and  would  be
violative of Article 14 of the Constitution.

32)   We find that the High Court, instead of examining the matter from  the
aforesaid angle, has simply gone by the powers of the rule making  authority
to make Rules.  No doubt, rule making authority has the power to make  Rules
but such power has to be exercised by making the rules which are  consistent
with the scheme of the  Act and not repugnant to the main provisions of  the
statute itself.  Such a provision would be valid  and  1%  F.O.B.  value  in
determining handling charges etc. could be justified  only  in  those  cases
where actual cost is not ascertainable.  The High  Court  missed  the  point
that Garden Silk Mills Ltd. case was decided by this Court in  the  scenario
where actual cost was not ascertainable.  That is why we remark  that  first
amendment to the proviso to sub-rule (2) of Rule 9  which  was  incorporated
vide notification dated 19.12.1989 would meet be  justified.   However,  the
impugned provision clearly fails the test.

33)   We would like to refer  to  the  judgment  of  this  Court  in  Indian
Acrylics (supra) at this juncture.  Though, the issue in that  case  related
to the rate of exchange touching  upon  the  provision  in  respect  whereof
contained in sub-section  (3)  of  Section  14  (unamended  provision),  the
question of law decided therein would support the view we are taking in  the
instant case.  A reading of sub-section (3) of  Section  14  would  make  it
clear that such rate of exchange can be determined by the Board  or  can  be
ascertained in such manner as the Board may direct, for  the  conversion  of
Indian currency into  Foreign  currency  or  Foreign  currency  into  Indian
currency.  Thus, Board had  been  given  power  to  determine  the  rate  of
exchange or stipulate the manner in which such rate of  exchange  is  to  be
determined.  Armed with this power, the  customs  authorities  notified  the
rate of exchange for the purposes of Section 14 at one US  dollar  equal  to
Rs.31.44.   Notification  in  this  behalf  was  issued  by  the  Board   on
27.03.1992.  On 29.04.1992, the Reserve  Bank  of  India  had  notified  the
exchange rate of one US dollar equal to Rs.25.95.   On  the  basis  of  this
fixation by the Reserve Bank of India,  the  notification  dated  27.03.1992
stipulating exchange rate of one US dollar equal to Rs.31.44 was  challenged
as arbitrary fixation of  the  exchange  rate.   This  Court  sustained  the
challenge in the following words:
"5.  The counter filed by the respondent before  the  High  Court,  as  also
before this Court, does not indicate why the rate  was  fixed  at  Rs.31.44.
The affidavits do not indicate that the  prevalent  Reserve  Bank  of  India
rate  had  been  taken  into  consideration.   Strangely,  the  High  Court,
adverting to this contention, stated that "... In the absence of  any  other
material brought on record, it cannot be held that the rate of  exchange  by
the  Central Government under Section 14(3)(i) is  arbitrary"  and  it  said
this after noting the  contention  on  behalf  of  the  appellant  that  the
Central Government rate was arbitrary being different  from  that  fixed  by
Reserve Bank of India.

6.  The exchange rate fixed by Reserve Bank of India  is  the  accepted  and
determinative rate of exchange for foreign exchange transactions.  If it  is
to be deviated from to the extent that  the  notification  dated  27.03.1992
does, it must be shown that the Central  Government  had  good  reasons  for
doing so.  Reserve Bank of  India's  rate,  as  we  have  pointed  out,  was
Rs.25.95, the rate fixed by the notification dated 27.03.1992 was  Rs.31.44,
so that there was a difference of as much as Rs.5.51.   In  the  absence  of
any material placed on record by the respondents and in the  absence  of  so
much as a reason stated on affidavit in this behalf, the rate fixed  by  the
notification dated 27.03.1992 must be held to be arbitrary."

34)   In the present case before us, the only justification for  stipulating
1% of the F.O.B. value as  the  cost  of  loading,  unloading  and  handling
charges is that it would help customs authorities  to  apply  the  aforesaid
rate 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 provision and are of the opinion that the authorities  have  not
been able to satisfy 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.

35)   In Kunj Behari  Lal  Butail  v.  State  of  H.P.[4]  this  Court  made
following  pertinent  observation  which  are  apt   and   contextual   and,
therefore, we are reproducing the same:
"13. It is very common for the legislature to provide for  a  general  rule-
making power to carry out the purpose of the Act.   When  such  a  power  is
given, it may be permissible to find out the object  of  the  enactment  and
then see if the rules framed satisfy the test of having been  so  framed  as
to fall within the scope of such general  power  confirmed.   If  the  rule-
making power is not expressed in such a usual general  form  then  it  shall
have to be seen if the rules made are protected by the limits prescribed  by
the parent act. (See: Sant Saran Lal v. Parsuram Sahu, AIR  1966  SC  1852).
From the provisions of the Act we cannot spell out  any  legislative  intent
delegating expressly, or by necessary implication, the power  to  enact  any
prohibition on transfer  of  land.   We  are  also  in  agreement  with  the
submission of Shri Anil  Divan  that  by  placing  complete  prohibition  on
transfer of land  subservient  to  tea  estates  no  purpose  sought  to  be
achieved by the Act is advanced and  so  also  such  prohibition  cannot  be
sustained. Land forming part of a tea estate including land  subservient  to
a tea plantation have been placed beyond the ken of the Act.  Such  land  is
not to be taken in account either for calculating area of  surplus  land  or
for calculating the area of land  which  a  person  may  retain  as  falling
within the ceiling limit.  We  fail  to  understand  how  a  restriction  on
transfer of such land is going to carry out any purpose of the Act.  We  are
fortified in taking such view by the Constitution  Bench  decision  of  this
Court in Bhim Singhji v. Union of India,  (1981)  1  SCC  166  whereby  sub-
section (1) of Section 27 of the Urban Land (Ceiling  and  Regulation)  Act,
1976 was struck down as invalid insofar  as  it  imposed  a  restriction  on
transfer of any urban of urbanisable land with a building or a portion  only
of such building which was within the ceiling area. The  provision  impugned
therein imposed a restriction on transactions  by  way  of  sale,  mortgage,
gift or lease of vacant land or buildings for a period exceeding ten  years,
or otherwise for a period of ten years from the date of the commencement  of
the Act even though such vacant land, with or without  a  building  thereon,
fell within the ceiling limits. The Constitution Bench  held  (by  majority)
that such property will be transferable without  the  constraints  mentioned
in sub-section (1) of Section 27 of the said  Act.  Their  Lordships  opined
that the light to carry on a business guaranteed under Article  19(1)(g)  of
the Constitution carried with it the right not to  carry  on  business.   It
logically followed, as a necessary corollary, that  the  right  to  acquire,
hold and dispose of property guaranteed to citizen  under  Article  19(1)(f)
carried with it the right not to hold any  property.   It  is  difficult  to
appreciate how a citizen could be compelled  to  own  property  against  his
will though he wanted to alienate it and the land being within  the  ceiling
limits was outside the purview of Section 3 of the Act  and  that  being  so
the person owning the land was not governed by any of the provisions of  the
Act.  Reverting back to the case at hand, the learned counsel for the  State
of Himachal Pradesh has not been able  to  satisfy  us  as  to  how  such  a
prohibition as is imposed by the impugned amendment in the  Rules  helps  in
achieving the object of the Act.



14.  We are also of the opinion that  a  delegated  power  to  legislate  by
making rules "for carrying out  the  purposes  of  the  Act"  is  a  general
delegation without laying down any guidelines; it cannot be so exercised  as
to bring into existence substantive rights or  obligations  or  disabilities
not contemplated by the provisions of the Act itself."


36)   We are, therefore, of the opinion  that  impugned  amendment,  namely,
proviso (ii) to sub-rule (2) of Rule 9 introduced  vide  Notification  dated
05.07.1990 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.

37)   As a result, judgment of the High Court is set aside and  the  appeals
are allowed in the aforesaid terms with no order as to cost.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)

NEW DELHI;
APRIL 16, 2015.



-----------------------
[1]   (1998) 8 SCC 744
[2]   (2000) 2 SCC 678
[3]   It is  interesting to note, which is  somewhat  strange,  that  though
concept of transaction value was introduced in sub-section  (1)  of  Section
14 by amendment in the year 2007, which before that in the Valuation  Rules,
1988, the expression "transaction value" is incorporated.  This  also  lends
credence to our observations that the concept  of  unamended  provision  was
also to arrive at to take into consideration the actual  value  wherever  it
was available and was not excluded by any  of  the  circumstances  mentioned
therein.
[4]   (2000) 3 SCC 40

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