TMI Blog1995 (1) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... by two invoices issued by M/s. Netglass Allied Signal, U.S.A. In the Bill of Entry, the country of origin is declared as U.S.A. and the country of consignment as U.S.A. In the Bill of Entry, the CIF value of 44,061 US $ and 188.08 Kgs. Amorphous Boron Silicon steel strip has been declared as US $ 41,857.95 and US $ 478.4 respectively. The appellants have claimed clearance of the goods under OGL Appendix 6 List 8 Part I 81 No. 818(ii), which is described as Amorphous Silicon electrical steel sheet/wide Coils/Strips for the manufacture of electrical equipment and components thereof. The appellants are actual user of the imported goods for the manufacture of electrical motors, transformers and switchgear as per DGTD registration certificate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants are eager to have decision on merits in view of the fact that the goods are lying with the Customs. Further the show cause notice did not indicate the basis for enhancement and no such evidence was supplied to the party. Since there was a delay in adjudication proceedings on being the matter was taken up with the Member of Board of Central Excise Customs, subsequent to that, addendum to show cause notice was issued indicating basis wherein M/s. Usha Rectifier imported the goods as per Bill of Entry No. 005461 dt. 5-12-1987 declared US $ 4 per Kg. He said that the goods imported by M/s. Usha Rectifier in 1987 that too only 1 metric ton cannot be compared with that of bulk quantity of more than 21 ton imported by the appellants. Price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants since the goods were remaining with the custody of the Customs Authorities and the appellants are willing to undertake and fulfil all the formalities and other requirements relevant for that purpose. 4. Shri B.K. Singh, learned SDR while countering the argument submitted that the appellant s unit is Joint Venture of M/s. Usha Rectifier and Allied Signal Inc., U.S.A. (supplier) and accordingly they were required to give declaration with reference to previous imports. But in the instant case while filing the declaration pertaining to Bill of Entry dt. 21-8-1991, they have shown the position pertaining to previous imports of identical/similar goods is nil against serial No. 22 which is contrary to the facts. Since there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken as basis since they were not adjudicated in view of the fact that the appellants have become 100% export oriented undertaking and same benefit cannot be extended to the goods in question since the appellants have assumed status of 100% export oriented undertaking subsequent to the adjudication proceedings. 5. In reply Shri Santhanam, learned Advocate submitted that there was no allegation of the joint venture in the show cause notice and since the value was not determined based on the charge of mutuality of interest, the Departmental Representative cannot make out new case at this stage and the authority cannot go beyond the show cause notice. There was no misdeclaration of this fact as the position of joint venture was known to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for suspecting value shown in the invoice. Even an inference can be drawn but that itself is not sufficient to hold for misdeclaration or undervaluation in the absence of corroboratory or contemporary evidence. It is well settled that the burden lies squarely on the Department in discharging charge of undervaluation. Undervaluation must be proved by corroboratory evidence. There is nothing on record to show that dealings between importer and the supplier are not at arm s length or that the price charged by the supplier is not fully commercial one. Assessed value cannot be determined on the basis of mere assumption and presumptions. Suspicion however, grave will not substitute for positive proof. We are not convinced with the arguments adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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