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2014 (5) TMI 975 - CESTAT NEW DELHIValuation - Mis-declaration of value of goods – Sustainability of duty demand on the basis of upward revision of assessable value –Whether the prices of the raw materials mentioned are the price in India or the prices in China and if so, what is the source for this information and also what is the cost of manufacture of these items in China - Held that:- Goods on examination were found to be as per declaration - The main basis for not accepting the declared value is that the per kg. price of the goods is less than the average price of the raw materials - plastic, glass, steel, etc. - For making the allegation of under-valuation and rejecting the declared transaction value, the department cannot adopt the price of raw materials of the goods in India and allege that the declared price of the goods is less than the average price of the raw materials - The price of the raw materials and manufacturing cost for this purpose has to be of the country in which the goods had been manufactured - Therefore, the very basis for rejecting the declared transaction value is not sustainable. This Court do not find any iota of evidence in support of the department's allegation of mis-declaration of value and absolutely no evidence of contemporaneous import of identical or similar goods in comparable quantity at higher price had been produced - Just because the partner of the importer firm agrees for determination of the value under Rule 7 of the Valuation Rules, the department cannot allege that the value has been mis-declared - Moreover, the determination of value under Rule 7 has also been done in a very strange manner, as the department has not mentioned as to which the importer of identical or similar goods had been selling the goods in India at the wholesale price which had been adopted in this case for determination of assessable value under Rule 7 – Therefore, there is absolutely no basis for rejecting the declared transaction value and making the allegation of under-valuation against assesse – Thus, neither the duty demand on the basis of upward revision of assessable value nor the confiscation of the goods u/s 111(m) for alleged mis-declaration of value of the goods is sustainable. Liability of Confiscation of goods u/s 111(m) - Non affixing of MRP - Section 111(d) r/w Note 5(e) of the General Note of Foreign Trade Policy – Whether the goods imported were in bulk package or were in pre-packed form for sale to ultimate consumers - Held that:- According to the Note all pre-packaged commodity imported into India shall in particular carry maximum retail sale price at which the commodity in packaged form may be sold to the ultimate consumers - Unless the goods imported were in pre-packaged form meant to sale to the ultimate consumers, the provisions of Note 5(e) r/w Section 11(1) of Foreign Trade Development and Regulation Act, would not be applicable - However, there is no finding of the Commissioner (A) for deciding the question of liability of the imported goods for confiscation u/s 111(d) - The matter is remanded back for de novo adjudication – Decided in favour of assesse.
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