TMI Blog2011 (7) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ind any justifiable reasons to uphold the charge of the Revenue - Appeal is allowed - C/148/2009 - C/326/2011(PB) - Dated:- 14-7-2011 - Ms. Archana Wadhwa, Shri Mathew John, JJ. REPRESENTED BY : Ms. Reena Rawat, for the Appellant. Shri Sonal Bajaj, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. Vide his impugned order Commissioner of Customs has confiscated 37.00 MT of mixed fatty acid imported by the appellant on the findings of mis-declaration of the description of the goods as also the value, with an option to the appellant to redeem the same on payment of redemption fine of Rs. 2 lakhs. In addition he has rejected the assessable value of US$ 185 per MT declared by the appellant and has enhanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction value, adoption of the higher assessable value, the resultant confirmation of demand of duty, confiscation of the goods and imposition of penalties. The said show cause notice resulted in passing of the impugned order by Commissioner. 5. After going through the order of the Commissioner we find that he has basically relied upon the following evidences. (a) There was general intelligence that the importers of PFAD and Palm Acid Oil were mis-declaring the description and value of the imported goods and were evading payment of custom duty. (b) Shri Rakesh Kumar, an indenting agent for Palm Fatty Acid Distillate for various importers in India and several Malaysian firms, in his voluntary statement dated 3-11-2006, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission for the deals brokered by him. (d) As per the monthly export price bulletin of Palm Fatty Acid Distillate (FOB) USS/TONNE) issued by the Malaysia Palm Oil Board, the average price of Palm Fatty Acid Distillate during the year 2006 was US$ 345 PMT (FOB). If valuation of the same is conducted as per the Valuation Rules, 1988 then 20% of the FOB is to be added as freight which comes to US$ 69 and the total comes to US$ 414/PMT and insurance @ 1.125% comes to US$ 3.88 and thus the CIF value comes to US$ 417.88 PMT. Therefore, the average actual price in US$ of Palm Fatty Acid Distillate comes to US$ 420 PMT (CIF). (e) Representative samples were drawn from the containers imported under bill of entry No. 540998 dated 10-10-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in various decisions of the Tribunal. The report of the chemical examiner only refers that the goods have the characteristics of fatty acids. The goods having been described by them as mixed fatty acids match with the said report and as such there can be no charge of mis-declaration of description of the goods. As regards the statement of Shri Raghuvar Dayal, it stands contended that the said deponent has nowhere accepted the fact of undervaluation. He only agreed to pay duty at the enhanced value so as to get the release of the goods and to avoid further demurrage charges. 7. Learned advocate has also placed reliance on various decisions of the Tribunal laying down that in the absence of any evidence reflecting upon the under valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue thereagainst was rejected, as reported in 2003 (156) E.L.T. A385. Similarly in the case of Pawan Goel v. CC, New Delhi reported in 2001 (135) E.L.T. 1425 (Tri.-Del.), it was held that theoretical price based on LME bulletin cannot be made basis without corroborative evidence. We find that the legal position is well-settled and we do not find any need to multiply the precedent decisions. 10. Inasmuch as in the present case, there is no direct evidence indicating that the price reflected on the invoice is not the correct transaction value, we do not find any justifiable reasons to uphold the charge of the Revenue. Accordingly the impugned order is set aside and appeal is allowed with consequential relief to the appellant. (Pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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