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2016 (1) TMI 551 - AT - CustomsUnder valuation and mis-declaration of the goods namely 'AB King Pro, 5 in 1 Air-O-Space Sofa, Slim-N-Lift (Female Shorts), Magic Bullet (Food Processors), Sauna Belt (Fat Reduce Belt), Tool Kits' - In one of the statement undervaluation was admitted by Shri Narendra Mehta, proprietor of importer firm. However, the said statement was retracted. Undervaluation was further supported by the difference in the value declared to the Custom, sale price of importer to M/s. Telebrand and sale price of the Telebrand to their ultimate customers, the difference thereof was also considered for alleging the undervaluation. Held that:- at the time of assessment and clearance of the goods, the customs officers have already enhanced the value considering the contemporaneous value of the identical goods. As per Rule 5 and 6 of the Customs Valuations Rules, 1988 where there are two or more values of contemporaneous imports are available the lowest of such value has to be adopted. - herefore even though it is assumed that price of the M/s. Shreenath and M/s. GNG & Co. are correct, the price of contemporaneous goods adopted at the time of assessment and clearance of the goods which is lowest between the two contemporaneous value, the further enhancement cannot be done. In this legal position, the adjudicating authority has erred in applying the alleged value of M/s. Shreenath and M/s. GNG & Co. for enhancement of the value. In the case of present appellant, this legal position has been reinforced by the case of SRK enterprises [2012 (11) TMI 735 - CESTAT, MUMBAI] The impugned order has given much weightage to the fact that there is substantial difference in price declared to the customs, price at which goods sold to M/s. Telebrand India and price at which imported goods were sold by M/s. Telebrand to the ultimate customers. On this basis Ld. Commissioner observed that this difference in price shows that prices of the imported goods were undervalued. In this regard, it is our observation that firstly even if there is difference between import price and sale price of the said goods in the domestic market, the difference cannot be made the basis for holding that the price of the imported goods has been undervalued. In the present case there is no material evidence on record to show that there is flow back of amount over and above the sale value between importer and M/s. Telebrand India. Demand set aside - Decided in favor of appellants.
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