TMI Blog1991 (11) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... the job lot offer of US $ 2500 per MT CIF. On 13-2-1990, the appellants changed the destination from Bombay to Kandla. On 31-3-1990, the goods were shipped by 3 bills of lading and goods arrived in 3 containers bearing No. MERU 260087/1, MERU 742698/9, MERU 260090/6. On 9-4-1990, the appellants sold the goods on high seas to M/s. New Plastomer India Ltd. (hereinafter called as the high seas buyer). The high seas buyer filed a declaration before the Customs on 9-5-1990. The high seas buyer filed the Bill of Entry declaring the value at US $ 36,812.50, US $ 37,500 and US $ 37,500 in respect of each container containing 14,725 MT, 15000 MT and 15000 MT of Polycarbonate Synthetic resin mixed. The appellants further case is that they informed the customs by their letter dated 20-6-1990 that though the goods are prime virgin material they are capable of being used only as black colour and unfit for use as any other colour. 3. On 21-6-1990, the Customs Officer examined the goods and drew samples for chemical test. The Customs Officer recorded that the goods in container No. MERU 260087/1 were of the types i.e. coloured and colourless variety. 4. On 12-10-1990 a show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at US $ 3200 per MT CIF. Challenging the above order, Shri Sunderajan appearing for the appellants contended that the finding of the Collector that the appellant and the supplier are related persons within the meaning of Rule 2 sub-rule 2 is contrary to the definition of related persons under the said rules. The next contention of Shri Sunderajan is that the Collector while enhancing the value of the goods relied on the imports made by M/s. Ram Exports. The said imports are neither similar goods nor identical goods as Ram Imports are specific grade and of a particular colour. Neither Rule 5(3) nor Rule 6 is applicable to the impugned goods imports. He also submitted that the appellants have imported similar type of goods from M/s. Greaves Cotton Co. Ltd., which according to them, are relevant imports for determining the assessable value and the Collector has ignored the said imports without giving any reasons. He also submitted the rejection by the Collector of the telex messages is based on no reason as the transaction can be finalised within course of 24 hours and that cannot be a ground for discarding the transaction value. He further submitted that the fact that the Managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er are related persons. He also brought to our notice an order of this Tribunal in Rakesh Bulb Industries v. C.C.E. -1987 (31) E.L.T. 756. 10. Taking up the first contention of the appellants that the appellant and the supplier are not related persons, we may at this stage refer to Rule 2 sub-rule 2 of the Customs Valuation Rules, 1988. It gives a list of persons who shall be deemed to be related. It reads as follows : Rule 2 sub-rule 2 For the purpose of these rules, persons shall be deemed to be related only if- (i) they are officers or directors of one another s business; (ii) they are legally recognised partners in business; (iii) they are employer and employee; (iv) any person directly or indirectly owns, controls or holds 5 per cent or more of the outstanding voting stock or shares of both of them; (v) one of them directly or indirectly controls the other; (vi) both of them are directly or indirectly controlled by a third person; (vii) together they directly or indirectly control a third person; or (viii) they are members of the same family. Explanation I. - The term person also includes legal persons. Explanation II. -Persons who are associated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L BE SHPD IMMDTLY ON CFMTN FRM YR END. THIS IS THE FINAL PRICE N REST ASSURED THIS TYPE OF PRICE WE WILL NEVER BE ABLE TO GET FRM INTNL MRKT. WA CAN ALSO OFFER U OTHER MATERIAL AT USD 2700/- OF JAPANESE ORIGIN. THE ADV MATERIAL IS AVAILABLE BECAUSE OF JOB LOT. PLS CFM BY RETURN TLX . In reply to the above, the appellants sent their telex on 12-2-1990, i.e on the very same date replying : RYTLX 445 TDAY. ACCEPTING JOB LOT 45 TO 50 MT AT USD. 2500 CIF BOMBAY PROMPT SHIPMNT. SHIPMNT IN CONTAINERS WITH SEPARATE BL FOR EACH CONTAINER. PLS SEND YR CONTRACT ASAP. 13. In pursuance of the said acceptances the supplier by their letter dated 13-2-1990 sent a confirmation of Sales Letter in which the commodity is described as Polycarbonate Synthetic Resin. The next document is the Invoice No. 109/90 and 108/90 and Invoice No. 107/90. All the 3 invoices give the description of goods as Polycarbonate Synthetic Resin. The certificate of country of origin also described the goods as Polycarbonate Synthetic Resin. The bills of entry described the goods as Synthetic Resin Polycarbonate Mixed. 14. From the above, it follows that it is only the reply telex offering 45 to 50 MT in single lot r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ); that these four bills of entry have been assessed by C.H. Bombay taking CIF price @ US $ 3200/- per MT as indicated in the relative invoices; that Indents No. JC- 21532, dated 4-4-1989 and JC21705 dated 13-6-1989 placed by M/s. Jagat Chemicals Pvt. Ltd., Bombay for various Makrolon grades (both coloured colourless of Polycarbonates indicated CIP prices of the goods @ US $ 3000/- per MT; that letter of credit No. FLC 0203022190 dated 23-1-1990 opened by M/s. New Plastomers Ltd., Daman from Canara Bank, Bombay in connection with import of Polycarbonates (Makrolon grades) showing CIF price of the goods @ US $ 3000/-per MT. From the documents submitted by the importers as discussed above, it appears that CIF price of Polycarbonate of different grades (both coloured colourless) were at the rate of US $ 3000/- to 3200/- per MT between April, 1989 to Jan. 1990." 15. The appellants no doubt in their reply refer to an import by M/s. Greaves Cotton Co. at Bombay at the rate of US $ 2650/- per MT CIF but no particulars as to quality, the date of import, the country of origin is not made available. Whereas in respect of their own imports in Nov. 1989, they merely say that it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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