TMI Blog2004 (10) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... le trade/transactions and there was no reason put forth by the importer why the above international journal prices were not valid. There was also no evidence or any convincing reason as to why the suppliers of the consignment under import had effected the supplies at a price lower than that prevailing in the international market. Besides, the prices accepted at Chennai Port for assessment of the same goods were also corroborative that the declared price especially of HDPE (Film Grade) as declared in the present case was not correct. It was also urged before us that the price as accepted in many Bills of Entry relied upon by the importer could not be compared with the present case since from the BEs produced, it could be verified whether the same were investigated and the date of the contract on which the supplies were effected on these BEs were not available. It was also contended on behalf of the Revenue that in the present case the BEs were assessed at the declared value in normal course of assessment and the declared value was accepted as correct and clearances were allowed under Section 47 of the Customs Act, 1962, although it was only after such confirmation enquiries were con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are not the prices for export to India and that as per Rule 4(1) of the Customs Valuation Rules, 1988, the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, they have stated that there are certain exceptions where this proviso cannot be applied, but their case does not fall within those exceptions. They have relied upon the decision of Tribunal in the case of PAC systems, wherein it is held that transaction value not to be discarded transaction value has to be accepted except in the circumstances referred in the proviso (a) (b) (c) (d) of sub-rule (2). This decision of the Tribunal was upheld by the Supreme Court as reported in 1993 (67) E.L.T. 209 (S.C.). In this regard, they have also referred to the decision of Tribunal in the case of Sippy Pramod Steel Alloys Pvt. Ltd. reported in 1990 (45) E.L.T. 444 (T), wherein the Tribunal held that merely by replying on the prices quoted in the metal bulletins, the value cannot be enhanced, as these are only indicative prices and not confirmed prices and the confirmed price is one at which the contracts are entered and LCs are opened. 6.1 As regards the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (71) E.L.T. 310 (T) in the case of Parekh Co., wherein the Tribunal relying upon the decision of Hon ble Calcutta High Court in the case of Sandip Agarwal reported in 1992 (62) E.L.T. 528 (Cal) held that if the transaction value is available, i.e. the price actually paid or payable is available, then the assessable value shall be determined by accepting the price actually paid or payable unless it is found to be not genuine. 8. The provisions of law which are applicable in this case are the Customs Valuation Rules, 1988. Rule 3 of these rules states that the value of the imported goods shall be the transaction value. Rule 4 states that the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, subject to adjustments in accordance with provisions of Rule 9, which says that certain expenses towards cost and services rendered by the buyer shall be included in the assessable value. Where the transaction value is not available, the value for the purpose of levy of Customs duty is to be ascertained by proceeding sequentially through Rules 5 to 8 of these rules. In sub-rule 1(a) of this rule, it is stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DPE LH-148 80.000 MTs at US$ 675 PMT C F, in the case of bill of entry No. 04078, dt. 5-5-1997, M/s. Rukmani Polymers Pvt. Ltd., Delhi, have imported HDPE F-600 of 240.000 MTs at US$ 700 PMT C F, in the case of B/E No. 4247, dt. 8-5-1997, M/s. Saru Plastics Panchmahal have imported HDPE LH-148 80.000 MTs at US$ 680 PMT C F at Kandla Custom House, in the case of Bill of Entry No. 04260, dt. 8-5-1997, M/s. Vini Plastic Centre, Indore, have imported HDPE Yuclair 25000 16.000 MTs at US $ 710 PMT C F at Kandla Customs House, in the case of Bill of Entry No. 4077, dt 5-5-1997, M/s. Rukmani Polymers P. Ltd. have imported HDPE F-600 256.000 MTs at US $ 700 PMT C F at Kandla Custom House, in the case of Bill of Entry No. 4025, dt. 1-5-1997, M/s. Vishal Corporation, Ahmedabad, have imported HDPE F-600 16.000 Mts at US $ 730 PMT C F at Kandla Custom House, in the case of Bill of Entry No. 3594, dt. 29-4-1997 M/s. Puja Poly Plastics P. Ltd., Delhi, have imported 64.000 MTs HDPE 8303 at US $ 700 PMT C F at Kandla Custom House, in the case of Bill of Entry No. 5983, dt. 19-6-1997 M/s. Rukmani Polymers Pvt. Ltd., Delhi, have imported 96.000 Mts HDPE B-303 at US $ 770 PMT C F at Kandla Custom Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. 10. No basis can be made on the prices quoted in the journals for ascertaining the transaction value as these prices are only indicative prices which give the general trend of the international market and it is not the price which the buyer and seller will take as basis for entering into contract as the actual contract for sale is dependent upon various commercial factors and in a given case the contracted price may be less or more than the prices quoted in the journals. This apart, even if the prices quoted in the journals such as PLATT etc. are to be considered, it is seen from the record produced by the appellants (annexure G of the Paper Book) that the goods have been purchased at the international price prevailing at the time of contract and this price is comparable with the PLATT s price available at that time, which was on 10-1-97 770-800 for HDPE and 740-750 US $ for PP, on 15-1-1997 770-780 for HDPE and 760-780 US $ for PP, the appellants have entered into contract on 15-1-1997, therefore, these quotations from PLATT are relevant. On the other hand, the adjudicating authority in the impugned order while highlighting the prices prevailing in the international market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered between the appellants and the manufacturer abroad at the rate of US $ 775 PMT for HDPE and US $ 765 PMT for Polypropylene, on 15-1-1997 and after the confirmation of contract, the appellants have opened LC on 17-3-1997 at the same rate. Therefore, I find that the findings of the adjudicating authority in the impugned order that the appellants sought amendment in the contract, including the extension of the date of shipment and therefore this being the material amendment, the price mentioned in the contract cannot be the basis for determining the price, is not correct, inasmuch as, due to non-availability of the ship, the date of shipment was extended in the contract. 12. The appellants have also contested that the Bombay Custom House is allowing clearances of the same goods at the prices which are even much less than the declared price. The appellants have also informed the Assistant Commissioner of Customs, Custom House, Kandla, vide their letter dt. 30-6-1997 (page 66 of paper book) that they are paying the differential duty demanded under protest and also reserve their right to be heard in person before the same is finally decided. The adjudicating authority has also a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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