TMI Blog2006 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was assessed and cleared at the rate of US$ 750 PMT. Since the supplier was delaying the supply of balance quantity within the contract period, the importer pursued the matter through DGFT/Embassy of India and thereafter the supplier shipped 63.46 MT cloves of Indonesian origin (during June 99 and 50.875 MT of cloves of Zanzibar origin during November 99 and the importer filed bill of entry claiming assessment at the contracted value of US $750 PMT. Since supplies were made beyond contracted period and there was an increasing trend of prices of these commodities in the international market, the department did not accept the declared value of US $750 PMT and sought to finalise the assessment at the rate of US $1800 PMT based on the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Embassy and the matter was in the knowledge of the Custom House itself, the same cannot be faulted with. It was further observed that in the absence of any evidence regarding any additional payments received by supplier, the transaction value cannot be rejected and therefore the question of going in to the value of contemporaneous import does not arise. The Commissioner also considered some of the prices of the contemporaneous import obtained from Directorate of Valuation and came to the conclusion that these prices cannot be considered as contemporaneous as there was vast difference between quantity imported. Therefore on this ground also it was held that the value cannot be enhanced and therefore the decided value of US $750 PMT has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying cloves of Indonesian origin at the rate of US $750 PMT and the same was limited only for supply up to Feb..99. Again the assessee tried to import cloves of Zanzibar origin in the month of Nov.99. The Commissioner should have known that the cloves of Zanzibar origin which are considered to be superior to Indonesian cloves, could not have been imported in Nov.99 at price of US $750 PMT against the contract which was limited only for supply up to Feb.99, particularly in view of the fact that market price of cloves of Madagaskar origin had reached up to US $ 3400 PMT in Nov. 99 as reflected in the Public Ledger . The Commissioner should have therefore rejected the claim of the importer in view of the above facts. Once the goods are import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequentially through Rules 5-8 of these Rules. It was further submitted that the Rules framed under Section 14(1A) and the provisions of Section 14(1) were interpreted by the Supreme Court in the case of Commissioner of Customs, Mumbai v. Bureau Veritas - 2005 (181) E.L.T. 3 (S.C.) wherein Para 17 it was observed as under: it is true that the Rules are framed under Section 14(1A) and are subject to the conditions in Section 14(1). Rule 4 is in fact directly relatable to Section 14(1). Both Section 14(1) and Rule 4 provide that the price paid by an importer to the vendor in the ordinary course of commerce shall be taken to he the value in the absence of any of the special circumstances indicated in Section 14(1) and particularised in Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner has clearly established in his order that the price cited by the Department cannot be considered as contemporaneous import as the quantity differs vastly. CEGAT decisions were cited to the effect that if the quantity/quality is not comparable then the import cannot be considered as contemporaneous. In view of this it was submitted that there is no flaw in the order of the Commissioner and the same should be uphold. 6. We have considered the submissions. We find that the Revenue has challenged the value only in respect of consignments where cloves of Zanzibar origin were imported and not the cloves imported during the period July, 1999 which were of Indonesian origin even though the prevailing international market price as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be rejected as per Rule 4(1) and Rule 3 the same has to be considered as the value for the purpose of Section 14(1). There is no contradiction between the Rules and the provisions of Section 14(1) as has been brought out by the Apex Court in the case of Bureau Veritas cited supra wherein it has been very clearly held that both Section 14(1) and Rule 4 provide that the price paid by an importer to the vendor in the ordinary course of commerce shall be taken to be the value in the absence of any of the special circumstances indicated in Section 14(1) and particularized in Rule 4(2). Para 18 of this decision clarifies this position very clearly and the same is reproduced below. Rule 4(1) speaks of the transaction value. Utilisation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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