Customs Valuation The rates of customs duties leviable on imported goods (& export items in certain cases) are either specific or on ad valorem basis or at times specific cum ad valorem. When customs duties are levied at ad valorem rates, i.e., depending upon its value, it becomes essential to lay down in the law itself the broad guidelines for such valuation to avoid arbitrariness and to ensure that there is uniformity in approach at different Customs formations. Section 14 of the Customs Act, 1962 lays down the basis for valuation of import & export goods in the country. It has been subject to certain changes basic last change being in July-August, 1988 when present version came into operation. Briefly the provisions are explained in the following paragraphs. Tariff Value: 2. The Central Government has been empowered to fix values, under subsection (2) of Section 14 of the Customs Act, 1962 for any product which are called Tariff Values. If tariff values are fixed for any goods, ad valorem duties are to be calculated with reference to such tariff values. The tariff values may be fixed for any class of imported or export goods having regard to the trend of value of such or like goods and the same has to be notified in the official gazette. Recently tariff values have been fixed in respect of import of Crude Palm Oil, RBD Palm Oil, RBD Palmolein under Notification No.36/2001-CUS (N.T.), dated 3.8.2001 and for RBD Crude Palmolein under Notification No. 40/2001- CUS (N.T.) dated 28.08.2001. Valuation of Imported/Export Goods where no Tariff Values fixed: 3. Section 2(41) of the Customs Act, 1962 defines Value in relation to any goods to mean the value thereof determined in accordance with the provisions of sub-section (1) of Section 14 thereof. 4. Sub-section (1) of Section 14 in turn states that when 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 the seller and the buyer have 48
no interest in the business of each other and the price is the sole consideration for the sale or offer for sale. 5. As far as export goods are concerned, provisions of sub-section (1) of Section 14 provide a complete code of valuation by itself. On the other hand, for imported goods, as per sub-section (1A) of Section 14, the value is required to be determined in accordance with rules made in this behalf. Accordingly, the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 have been framed and notified under Notification No.51/88-CUS (N.T.) dated 18.7.1988. 6. The provisions of sub-section (1) of Section 14 follow the provisions contained in Article VII of GATT. The Customs Valuation Rules, closely follow the WTO Customs Valuation Agreement to implement Article VII of GATT. The methods of valuation prescribed therein are of a hierarchical order. The importer is required to truthfully declare the value in the B/E and also provide a copy of the invoice and file a valuation declaration in the prescribed form to facilitate correct and expeditious determination of value for assessment purposes. Methods of Valuation: 7. According to the Customs Valuation Rules, 1988, the Customs Value should normally be the "Transaction Value", i.e., the price actually paid or payable after adjustment by Valuation Factors (see below) and subject to (a) Compliance with the Valuation Conditions (see below) and (b) Customs authorities being satisfied with the truth and accuracy of the Declared Value. Transaction Value: 8. Rule 3(i) of the Customs Valuation Rules, 1988 states that the value of imported goods shall be the transaction value. Rule 4(i) thereof states that 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. 9. The price actually paid or payable is the total payment made or to be made by the buyer to the seller or for the benefit of the seller for the imported goods. It includes all payments made as a condition of sale of the imported 49
goods by the buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller. 10. If objective and quantifiable data do not exist with regard to the Valuation Factors, if the Valuation Conditions are not fulfilled, or if Customs authorities have doubts concerning the truth or accuracy of the declared value in terms of Rule 10A of the Customs Valuation Rules, valuation has to be carried out by another method in the following hierarchical order: Comparative Value Method Comparison with Transaction Value of Identical goods (Rule 5); Comparative Value Method Comparison with Transaction Value of Similar goods (Rule 6); Deductive Value Method Based on sale price in the importing country (Rule 7); Computed Value Method Based on cost of materials, fabrication and profit in the country of production (Rule 7A); Fallback Method Based on previous methods with greater flexibility (Rule 8). VALUATION FACTORS: 11. Valuation Factors are the various elements which must be taken into account by addition (Dutiable factors) to the extent these are shown to be not already included in the price actually paid or payable or deduction (Non-dutiable factors) from the total price incurred in determining the Customs Value, for assessment purposes. Dutiable Factors: Commissions and brokerage, except buying commissions; The cost of containers which are treated as being one for Customs purposes with the goods in question; The cost of packing whether for labour or materials; 50
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 the imported goods, to the extent that such value has not been included in the price actually paid or payable:- material, components, parts and similar items incorporated in the imported goods; tools, dies, moulds and similar items used in the production of the imported goods; materials consumed in the imported goods; engineering, developing, artwork, design work, and plans and sketches undertaken elsewhere than in the importing country and necessary for the production of imported goods; Royalties and license fees related to goods being valued that the buyer must pay either directly or indirectly, as a condition of sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable; The value of any part of the proceeds of any subsequent resale, disposal or use of the goods that accrues directly or indirectly to the seller; Advance payments; Freight charges up to the place of importation; Loading, unloading and handling charges associated with transporting the goods; Insurance. Non-dutiable Factors: The following charges provided they are separately declared in the commercial invoice:- 51
Interest charges for deferred payment; Post-importation charges (e.g. inland transportation charges, installation or erection charges, etc.); Duties and taxes payable in the importing country. Cases where transaction value may be rejected: 12. The transaction value may not be accepted for customs valuation in the following categories of cases as provided in Rule 4(2):- (a) If there are restrictions on use or disposition of the goods by the buyer. However, the transaction value not to be rejected on this ground if restrictions: (i) are imposed by law or public authorities in India; (ii) limit geographical area of resale; (iii) do not affect the value of the goods substantially. (b) If the sale or price is subject to a Condition or consideration for which a Value cannot be determined. However, conditions or considerations relating to production or marketing of the goods shall not result in rejection. (c) If part of the proceeds of the subsequent resale, disposal or use of the goods accrues to the seller, unless an adjustment can be made as per valuation factors. (d) Buyer and seller are related; unless it is established by the importer that (i) (ii) The relationship has not influenced the price; The importer demonstrates that the price closely approximates one of the test values. 13. The transaction price declared can also be rejected in terms of Rule 10A, when the proper customs officer has reasons to doubt the truth or accuracy of the value declared & if even after furnishing of further information/documents or other evidence produced, proper officer is not satisfied & has reasonable doubts about the value declared. 52
Rights of appeal: 14. The principles of natural justice are also required to be followed in valuation matters. When the Customs authorities do not accept the declared value and re-determine the Customs value, the importer or his representative is required to be given a written notice normally and even a personal hearing. An adjudication order giving in detail the basis of determination of the value can be obtained if the importer is aggrieved with the re-determination of value. Under the Customs Act, 1962, an importer can appeal against a decision on valuation to the Commissioner (Appeal) in the first instance. A second appeal lies to the Tribunal consisting of administrative and judicial members. A third appeal lies to the Supreme Court of India. The importer is informed regarding his rights of appeal by each of the adjudicating and appellate authorities. Provisional clearance of imported goods: 15. Section 18 of the Customs Act, 1962 and Customs (provisional duty assessment regulation), 1963 [M.F. (D.R.) Notification No.181-Cus., dated 13 th July, 1963], allows an importer to provisionally clear the imported goods from Customs pending final determination of value by giving a guarantee in the form of surety, security deposit or bank guarantee. Valuation of Imported goods in case of related party transaction: 16. Sub-rule 2 of Rule 2 of Customs Valuation Rules, 1988 has enumerated the persons who shall be deemed to be related. Sub-Rule 3 of Rule 4 provides that where buyer and seller are related, the transaction value can be accepted if the examination of circumstances of the sale of the imported goods indicate that the relationship did not influence the price or if the importer demonstrates that the declared value of the goods being valued, closely approximately to one of the test values namely transaction value of identical/similar goods, deductive value for identical/similar goods or computed value for identical/similar goods ascertained at or about the same time. 17. The related party transactions are examined by Special Valuation Branches located at four major Custom Houses namely Mumbai, Calcutta, Chennai & Delhi. The guidelines for examination of the circumstances of the sale of the imported goods in case of related parties have been laid down vide Ministry s Circular No.11/2001-Cus., dated 23.2.2001. The circular provides a questionnaire to be filed up and a list of documents to be furnished and the same 53
could be studied for ensuring timely action by concerned importers so that finalisation of provisional assessments is expedited. ***** 54