TMI Blog2015 (9) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. - before rejecting the invoice price the Department has to give cogent reasons for such rejection. There are no such cogent reasons coming forth in the present case. Moreover, it is to be borne in mind, as stated in para 14 of the said judgment, that the onus is on the Department by leading cogent evidence. No evidence of any nature whatsoever is brought on record to show that they were contemporaneous sales/transactions at high price. Reliance upon the agreement between M/s. Indofil and M/s. R&H is of no avail as admittedly the transaction between the aforesaid two parties were for the period prior to 01.11.1995 and they were not contemporaneous. We, thus, do not find any error in the judgment of the Tribunal - Decided against Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered into between M/s. R H with the assessee, M/s. R H had similar arrangement with M/s Indofil, which is a division of M/s. Modipon Ltd. Agreement with M/s Indofil was entered on 03.05.1965 which continued up to 31.10.1995 and on termination of the agreement between M/s. R H and M/s. Indofil, arrangements were entered into by M/s. R H with the assessee on 01.11.1995. The Revenue found that M/s Indofil had paid the price of the product at US$2.71 per kg., CIF, Mumbai during the period from December, 1994 to March, 1995 and US$2.85 per Kg. for the period from August, 1995 to February, 1996. Since M/s. Indofil had purchased the same product from the same manufacturer viz M/s. R H at a higher price i.e. US$2.85 per kg. during August 1995 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they directly or indirectly control a third person; or (viii) they are members of the same family. Explanation I--The term person also includes legal persons. Explanation II--Persons who are associated in the business of one another in that one is the sole agent or sole distributor or sole concessionaire, however described, of the other shall be deemed to be related for the purpose of these rules,if they fall within the criteria of this sub-rule. As per the Revenue the arrangement between M/s. R H and assessee gets covered by sub-clause (v) of Rule 2(2) as according to the Revenue M/s. R H directly or indirectly control the assessee. This control is brought into operation on the premise that the assessee is a sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 14(1) and Section 14(1A) are not mutually exclusive. Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. The value is deemed to be the price at which such goods are ordinarily sold or offered for sale, for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or for offer for sale. Therefore, what has to be seen by the Department is the value or cost of the imported goods at the time of importation, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence do not apply to adjudication proceedings. They apply strictly to the courts' proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. 13. Section 14(1) speaks of deemed value . Therefore, invoice price can be disputed. However ..... X X X X Extracts X X X X X X X X Extracts X X X X
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