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2020 (6) TMI 67 - AT - CustomsValuation of imported goods - percentage of enhancement to the transaction value - ‘order of loading’ in the transaction value - Comparable goods or not - HELD THAT:- As the ASD do not import ‘RF products’ as well as the ‘made to order products’, but some products are imported both by the appellant and the ASD, but are not comparable. Such imports constitute a significant part of the total imports made by the appellant. Such imports are in the range of 16 to 51% during the period 2013-14 to 2017-18 or an average of 36% of the total imports made by the appellant. Further, the quantity imported by the appellant is more than 200 times than the quantity imported by the ASD - the ASD placed order for import usually when they have sales order in hand and do not undertake stocking of the products. Whereas the appellant irrespective of the sales orders in hand, the appellant imports in bulk and stocks, and maintains an inventory. Thus they incur much higher selling and distribution cost. Thus, there is no reasonable basis for enhancement of 77% in the transaction value as per the impugned order. The proposition of Revenue that the import price of ASD are comparable to that of the appellant is a vague, in view of the heavy difference in the quantity imported of identical goods. Thus, the appellant and the ASD cannot be treated as a comparable at commercial level. Sub-rule (3) of Rule 3 in clause (b) provides that, in case of sale between the related person the transaction value shall be accepted whenever the importer demonstrates that the declared value of the goods being valued, closely approximate to one of the following values imported at or about same time. Sub-clause (ii) in clause (b) provides for the deductive value of the identical goods or similar goods. In applying the value use for comparison, due account shall be taken of demonstrated difference in commercial level, quantity levels, adjustment in accordance with the provision of Rule 10 and cost incurred by the seller in sales, in which he and the buyer are not related. Sub-rule (4) of Rule 3 further provides, if the value cannot be determined under the provisions of sub-rule (1) of Rule 3, the value shall be determined by proceedings sequentially through Rule 4 to 9. Admittedly, it is evident on the face of the record that deductive value was available before the Court below which have not been rejected by a speaking order, thus, violating the provisions of Rule 3 (3) of the Valuation Rules - as the deductive value for calculation have not been rebutted by the Revenue, the same has to be followed for calculation of any adjustment in the transaction value in terms of Rule 3(3) of the Valuation Rules. This appeal is allowed by way of remand to the Court below to the Deputy Commissioner, SVB to re-determine the adjustment, if any, in the transaction value on the basis of deductive value and computed value - appeal is allowed by way of remand.
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