TMI Blog2010 (2) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1012 dated 2-1-2009 to US $ 40.50 PMT from US $ 107 PMT and in case of remaining B/Es. upheld the Lower Adjudicating Authority’s order. Held that- there is no finding of the lower authorities that the in voices issued by overseas suppliers are fake or fabricated and that the transaction value shown therein has not been actually paid by the Appellant. Since the transaction value is determinable under Section 14 of the Customs Act, 1962, read with Rule 3(1) of the Valuation Rules, the question of resorting to assessment under Rule 5 does not arise. The transaction value declared in the instant case has been rejected without the sanction of law. Therefore, the impugned Order is not sustainable, hence set aside. The Appeal is allowed. - C/461-465/2009 - A-64-68/KOL/2010, - Dated:- 4-2-2010 - S/Shri S.S. Kang, Vice-President and S.K. Gaule, Member (T) Shri S.K. Mohant y Advocate, for the Appellant. S/Shri R.K. Chakraborty, SDR assisted by M.A. Ansari, Dy. Commissioner, for the Respondent. [Order per: S.K. Gaule, Member (T)]. - Heard both sides. 2. This is an Appeal filed against the Commissioner (Appeals') Order No. 07-11/CUS/B-I/2009, dated 22-6-2009, wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of metals. Any delay or blockage in clearance of this by-product has an effect on the backward production activity, which hampers the output of primary metal in question. Sulphuric Acid is a highly corrosive liquid and is classified as hazardous chemical and needs to be stored and handled very carefully. The metal producing companies have limited storage facilities and as such, the said product cannot be stored in large volumes. Further, the product by nature being very hazardous cannot be stored in open space; therefore, it needs to be moved out of premises regularly. The consumption of such by-product material is always with fertilizer producing companies or for the leaching of metal ores in addition to small quantities in the domestic market. The larger volumes are consumed by the above two industries only. In the pre sent day scenario, the demand from ore leaching industries specifically in South American countries such as Chile and Peru have gone down for the reason of declining prices of the finished metals. This has influenced the large availability of Sulphuric Acid from Korea, Japan and Philippines. In view of fluctuation of demand/supply situation of Sulphuric Acid in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E v. Jai Bharat Steel Inds. - 2005 (192) E.L.T. 792 (Tri.); (ii) Eicher Tractors Ltd. v. CC, Mumbai - 2000 (122) E.L.T. 321 (S.C.); (iii) Motor Industries Co. Ltd. v. CC - 2009 (244) E.L.T. 4 (S.C.); (iv) Bayer India Ltd. v. CC, Mumbai - 2006 (198) E.L.T. 240 (Tri.); (v) CC, Mumbai v. Mahalaxmi Gems - 2008 (231) E.L.T. 198 (S.C.); (vi) CC, Mumbai v. J.D. Orgochem Ltd. - 2009 (226) E.L.T. 9 (S.C.); (vii) Oswal Fats Oil v. CC, Amritsar - 2007 (220) E.L.T. 795 (Tri.); (viii) Agarwal Industries v. CC, Vizag - 2006 (193) E.L.T. 421 (Tri.); (ix) Torrent Power Co. Ltd. v. CC, Ahmedabad - 2008 (230) E.L.T. 113; (x) Andhra Sugars Ltd. v. CC, Visakhapatnam - 2006 (193) E.L.T. 68; (xi) Godfrey Philips India Ltd. v. CC, Nhava Sheva - 2006 (206) E.L.T. 930; (xii) H.T. Company v. CC, Hyderabad - 2007 (208) E.L.T. 507 (Tri.); (xiii) CC, Amritsar v. Supreme Yarn Ltd. - 2008 (232) E.L.T. 650 (Tri.); (xiv) Venus Optics v. CC, New Delhi - 2005 (183) E.L.T. 404 (Tri.); (xv) Sundek India (P) Ltd. v. CC, Mumbai - 2006 (200) E.L.T. 381 (Tri.); (xvi) Nirma Ltd. v. CCE, Kandla - 2005 (185) E.L.T. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of Rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation:- (1) For the removal of doubts, it is hereby declared that:- (i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the de clared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with Rules 4 to 9. (ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher prices, the transaction value was required to be accepted, and we, therefore, set aside the impugned order of rejection of transaction value and loading of value, and allow the appeal." 5.4 We find that the Hon'ble Supreme Court in the case of M/s. Eicher Tractors Limited , reported in 2000 (122) E.L.T. 321, wherein it has been held that if the transaction value cannot be determined under Rule 4(1) [now Rule 3(1)] and does not fall under any of the exceptions in Rule 4(2) [now rule 3(2)], there is no question of determining the value under the subsequent rules. 5.5 We also find that in CC, Mumbai v. J.D. Orgochem Ltd., reported in 2008 (226) E.L.T. 9 (S.C.), the Apex Court relied on its decision in Eicher Tractors Ltd. v. CC, Mumbai [2000 (122) E.L.T. 321 (S.C.)] which is extracted hereunder. "14. It is only when the transaction value under Rule 4 is rejected, then under Rule 3(u) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
