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2013 (9) TMI 704 - CESTAT NEW DELHIDemand - Valuation of goods - rejection of value - Held that:- declared transaction value can be rejected only if the conditions for accepting the declared transaction value as mentioned under sub-rule (2) of Rule 4 of the Valuation rules are not satisfied or in terms of the provisions of the Rule 12 of the Valuation Rules, the proper officer has reasons to believe that the declared transaction value is not acceptable and in this regard, an order has been passed by following the prescribed procedure. In this case, the impugned order does not discuss as to why the declared transaction value is not acceptable in view of the provisions of sub-rule (2) of Rule 4 of the Valuation Rules and whether there are doubting any valid goods for doubting the declared value. The basis for rejecting the value in the impugned order that the declared value is less than the average price of the raw materials - plastic, glass, metals, etc, is totally incorrect, as the prices of these raw materials in India had been adopted, while the goods have been imported from China. In any case, even if the declared transaction value is rejected, the same has to be determined by sequentially applying under Rule 5 to 8 of the Valuation Rules and the assessing officer cannot jump directly to Rule 7. Even in respect of the Rule 7 also, which provides for valuation of the goods based on the wholesale price of the similar goods or like goods in India imported by other importers, the impugned order does not discuss as to who that importer is. There is no mention in the impugned order as to whether the contemporaneous import of like goods or similar goods in comparable quantity at the prices proposed in the show cause notice has been noticed. In view of this, we hold that the impugned order upholding the rejection of the transaction value and raising the same to Rs.7,18,890/- is not sustainable. For the same reason, the confiscation of the goods under Section 111(m) and imposition of penalty under Section 112 on this count is not sustainable - Decided in favour of assessee. Regarding confiscation - Held that:- the question of confiscation of FSL bulbs and Halogen bulbs under Section 111(d) has to be decided only after giving a clear finding as to whether these goods were imported in pre-packaged form so as to attract the provisions of Note 5 (e) of the General Note of Foreign Trade Policy - matter remanded back on the issue of confiscation.
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