TMI Blog2013 (10) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) TMI 310 - CESTAT CHENNAI] - Decided in favour of assessee. - C/86536/13-Mum - Final Order No. A/1116/2013-WZB/C-I(CSTB) - Dated:- 14-5-2013 - Ashok Jindal And S K Gaule, JJ. For the Appellant : Shri T Vishwanathan, Adv. For the Respondent : Shri M S Reddy, Dy. Commissioner (AR) PER : S K Gaule The applicant/appellant filed this application for early hearing of stay. The contention of the applicant is that the appeal relates to a live consignment which incurring heavy demurrage. In these circumstances, the early hearing of stay is allowed. 2. After hearing both sides and taking into consideration the fact that the mater relates to live consignment which is incurring heavy demurrage, we are of the view that the appeal itself can be disposed of. Therefore, after waiving the requirement of pre-deposit we take up the appeal for disposal. 3. Briefly stated facts of the case are that the appellants filed eleven Bills of Entry for import and clearance of PVC Coated Cloths of various thicknesses. The department rejected the transactional value and enhanced the value on the following grounds: (a) There was a DRI/MZU Alert dated 09.10.2012 suggesting gross under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in the case of Pushpanajali Silk Pvt. Ltd. vs. Commissioner of Customs - 2009 (238) ELT 135(T). 5.4 The contention is that DRI alert dt. 09.10.2012 is for Artificial Leather Cloth and not for PVC Coated Cloth. Both are very much different. In Artificial Leather Cloth, PVC or PU is on the Front Side or Face Side with different Embosses and backing of Fabric. In this item different Embosses on PVC or PU makes its look and mainly used for Shoes and Upholstery. In PVC Coated Cloth, Cloth is Front Side or Face Side and backing of Re-cycled PVC. In this item Fabric give it Look and mainly used of Bags. Price suggested by DRI is USD 1.20 to 2.20/mtr whereas our minimum loading by department is USD 0.45/mtr and maximum is USD 1.01/mtr means they themselves accept our item is not the same. 5.5 So far as Chief Commissioner's letter is concerned the contention is that letter suggested minimum value of Rs. 55.00/mtr which is not relevant to their case since the department not following this letter in their own case assessed B/E after loading to Rs. 24.32, 26.91, 31.23, 32.25, 44.20, 45.82 and 54.48 etc with average assessed price of Rs. 40.62. When department are assessing B/E even af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Carbonate mixed which cost not more than USD 0.40/kg. Density for Polyester and PVC resin is same whereas Calcium Carbonate is higher. In all the above mentioned three compositions material used is one kg means same thickness but price difference is huge i.e. USD 1.60, 2.08 and 1.12/kg. hence thickness alone cannot be considered for valuation. One must take both the component structure into consideration for valuation. Hence formula applied is not correct. 5.9 As regard, Textile Committee Report the contention is that the department has mentioned in their speaking order one Textile Committee reports of 210 D x 210D to justify their costing formula but that report is not for the item in question. The report is for 210Dx210D where in Polyester contents is higher means Fabric weight is higher compare to our imports in question. Hence this Textile committee report is mentioned without going into details of item involved. Report for the item involved was also with them because Polyester content was lower in that means less Fabric weight and more Re-cycled PVC, means it will cost less than declared price so they took T/C report of difference item which is not in question. 5.10 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment of the new Section 14 of the Act and CVR on 10.10.2007. Earlier transaction value within a reasonable range on either side of the contemporaneous price in the international trade was acceptable as assessable value. Then also no price arrived at by negotiations in the course of trade on commercial basis could be rejected as transaction value. This position continues even after 10.10.2007. The shift from a deemed normal price in the international trade for valuation of imported goods in the Section 14 of the transaction value has not resulted in any change in practice. 7.2.1 The lower adjudicating authority has rejected the value in case of eleven Bills of Entry as per the provisions of Rule 12 and re-determined the value under Rule 5 read with Rule 9 of Customs Valuation Rules (Determination of value of imported goods) Rules, 2007 (CVR in short). While doing so he also held that "in a quasi-judicial proceedings, we are concerned more with a preponderance of probability rather than proof beyond reasonable doubt." The learned Commissioner (Appeals) upheld the lower adjudicating authority order by holding that all requisite ingredients of similar goods are present in the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department failed to adduce or deduce any evidence, beyond the fact of his residing abroad. 7.2.4 Further the DRI's Circular relied upon by the department issued with respect to the artificial leather is not relevant to the appellant's case. Similar is the case with regard to Chief Commissioner's circular. 7.3.1 The lower authorities have re-determined the value in terms of Rules 5 read with Rule 9 of CVR. The relevant provisions are reproduced here-in-under: Rule 5. Transaction value of similar gods.- (1) Subject to the provisions of rule 3, the value of imported goods shall be the transaction value of similar goods for export to India and imported at or about the same time as the goods being valued: Provided that such transaction value shall not be the value of the goods provisionally assessed under seciton18 of the Customs Act, 1962. (2) The provisions of clauses (b) and (c) of sub-rule (1), sub-rule 92) and sub-rule (3), of rule 4 shall, mutatis mutandis, also apply in respect of similar goods. 7.3.2 The provisions referred in sub-Rule (2) to Rule (5) are reproduced here-in-under:- Rule 4 (1) (b) In applying this rule, the transaction value of identica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue shall be determined under the provision so f this rule on the basis of - (i) The selling price in India of the goods produced in India; (ii) a system which provides for the acceptance for customs purpose of the highest of the two alternative values; (iii) the price of the goods on the domestic market of the country of exportation; (iv) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values; 7.4.2 Rule 9 is provides for residuary method and further the Rule 3(4) provides that if the value cannot be determined under the provisions of sub-rule (1), the value shall be determined by proceeding sequentially through rule 4 to 9. 7.4.3 In this manner Rule 9 cannot be resorted to unless the value cannot be re-determined under Rule 4 to 8. If value is determined under Rule 5 then there is no need to resort to Rule 9 even if value is determined under Rule 9 the same has to be done by re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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