TMI Blog2015 (11) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of any material given by the assessee in support of this plea. - no documentary evidence was produced by the assessee to support the plea that the goods at Chennai port were inferior in quality than the goods imported and cleared at Mumbai port and there was no warranty clause of the goods imported at Chennai The goods imported by the assessee which were cleared at Mumbai port were found to be similar in nature. These imports were by the assessee itself. Therefore, price declared therein could be made the basis of valuation. Minimum price was taken as the transaction value. It was clearly permissible under Rule 8 read with Rules 5 and 6 of the Valuation Rules. - impugned order is set aside - Decided in favour of Revenue. - Civil Appeal No. 3748-3751 of 2007 - - - Dated:- 7-10-2015 - A. K. Sikri And Rohinton Fali Nariman, JJ. For the Appellant : Mr. K. Radhakrishnan, Sr. Adv. Mr. Sanjai Kumar Pathak, Adv. Mr. Ritesh Kumar, Adv. Mr. Aviral Kashyap, Adv. Mr. B. Krishna Prasad,Adv For the Respondent : Mr. K. L. Janjani,Adv JUDGMENT A. K. Sikri, J. The respondent/assessee herein imported sixteen consignments of secondary/defective CRGO Electrical Steel i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by M/s. Alfa for their imports through Ports other than Chennai is very much in line with the values declared by the other Importers through the above said Ports, and thus it appears that the prices declared by M/s. Alfa, their sister concern M/s. National as well as the other Importers at the above said Ports are to be the values/prices at which such goods are ordinarily sold or offered for sale. 2) It is clear from the above that the main ground on the basis of which undervaluation of the goods was alleged was that the assessee had imported the same material declaring higher price which was cleared at Mumbai port. Order-in-Original was passed affirming the said show cause notice and the demand of differential duty, including interest contained therein. The assessee had taken up the defence that the goods imported at Mumbai port at a higher value were of better quality and that they had the warranty of the suppliers. In support, the assessee had filed photographs of coils, strips and cuttings and also full description and the sizes/specifications of the goods imported through Chennai port to substantiate the claim that these goods were of inferior quality compared to tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneously imported elsewhere in India. Valuation under Rule 8 is also not sustainable for the reason that the rule provides that reasonable means for determining the value read with Customs Valuation Rules and Section 14(1) of the Customs Act have to be adopted and as per Section 14(1), time and place of delivery is very relevant and, therefore, the Commissioner has erred in enhancing the values on the basis of imports at a place other than the price of delivery of goods in question, by adopting Mumbai values for Chennai imports. 5) Contesting the aforesaid reasons and rationale given by the Tribunal, learned counsel for the appellant/Department referred to the averments and allegations made in the show cause notice which, according to him, were based on the investigations carried out in the matter, and clearly depicted that the assessee had shown the value of the same goods in question at a lesser price in the Bills of Entries filed by the assessee. He pointed out that on the basis of a specific information that the assessee and their sister concern M/s. Alfa Laminations, Plot No. B-8-9, IODC Industrial Area, Ringanwada, Daman. 396210 are importing consignments of Secondary D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nations covered under four show cause notices. Their main suppliers of CRGO electrical steel at Chennai as well as Mumbai and Nhava Sheva ports were M/s. J. Pearson International Inc, USA, M/s. Electrical Steel International, M/s. Trans Metal Gmbh, M/s. Orbit Metals Gmbh, M/s. Gold Arrow Metals, USA, ARB Metals, USA, Norek Trading etc. This list submitted by the importers in respect of imports by others indicate supplies made by M/s. J. Peason International in one case, M/s. Oribti Metals in 3 cases and M/s. Transmetal in 6 instances wherein the values were shown in the range of US$ 280 to US$ 350 PMT. On the other hand, the investigation brought out much clear and many more evidences of imports by others both through Chennai and Mumbai ports indicating much higher prices. I find that the investigation clearly brought out that other importers through Mumbai/Nhava Sheva Ports also imported secondary/defective steel cuttings and strips at US$ 485 PMT or more. Thus, the evidences were overwhelming in support of the argument that the goods imported through Chennai port where undervalued. Hence, I am unable to accept the contention that the imports made by others through Chennai port at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce thereof, it was not permissible for the Tribunal to accept this plea of the assessee. 9) There is yet another material circumstance which is specifically taken note of by the Adjudicating Authority but glossed over by the Tribunal. The factory of the assessee is at Daman and, thus, Mumbai port was much closer. On this basis, specific query was put to the assessee as to why certain imports were made through Chennai port instead of Mumbai port. However, no satisfactory reply was given to this question except making a bald averment that landing charges etc. were much less compared to rates at Mumbai which does not inspire any confidence, that too in the absence of any material given by the assessee in support of this plea. Insofar as the plea that goods which were cleared at Chennai port were defective in nature and, therefore, were not similar or identical goods, the Tribunal has only gone by the photographs that were produced. Here also, we find that approach of the Tribunal is faulty and the Commissioner rightly observed that these photographs did not conclusively establish that goods in such form were not imported through Mumbai port. It was also not clear when and how the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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