TMI Blog2015 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... something different and/or short with respect to comparison adopted by the Revenue for the purpose of under-valuation. - Revenue has not discharged the burden to establish under-valuation as required under the Customs Valuation Rules, 1988. In this view of the matter, we reject the value adopted by the Revenue - Decided in favour of assessee. - Appeal No. C/585 to 587/2007 - - - Dated:- 7-1-2015 - Shri Anil Choudhary, Member (Judicial) And Shri P.S. Pruthi, Member (Technical) For the Petitioner : Shri Anil Balani, Advocate For the Respondent : Shri Ahibaran, Addl. Commissioner (AR) ORDER Per: Shri Anil Choudhary The present appeals have been filed by the appellant against Order-in-Appeal No. 58 to 61/2007/MCH/AC/CC dated 17.4.2007 passed by the Commissioner of Customs (Appeals), Mumbai-I. 2. The issue relates to valuation of 10 varieties of Integrated Circuits and 6 varieties of transistors imported under Bill of Entry dated 8.9.2003. The consignment was examined by the Customs in normal course. Values of 8 out of 16 items were enhanced or loaded and the duty was assessed. Further investigation was taken up on 17.9.003 and the consignment was again ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the DRI, Jamnagar that the said firm is proprietorship concern of Jayesh Vithaldas Turakhia and he had been found in the given address. In the statement recorded of Jayesh V Turakhia, he said that he had opened this firm and started business about six months back and had obtained IEC No. 2402001780 from DGFT, Rajkot. He further stated that all the documents regarding the import are available in Mumbai office of one Harish Bhai Turakhia. He further stated that prior to venturing in export-import business, he was in the business of manufacture of artificial jewellery. 2.2 Further, the Revenue found that in the Bill of Lading in respect of the said goods, freight and insurance have been shown as Nil, which indicate that freight and insurance must have been borne by the supplier located at Singapore. It further reduced the FOB price and as such the case of under-valuation was prima facie made out. 2.3 The investigation also revealed that the said JV Turakhia, proprietor of M/s Krunal Corporation was a dummy or name lender and was getting some commission from Harish Bhai Turakhia towards the same. Finally, the consignment was taken under seizure on 14.10.2003 and the office pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the transaction value and re-assessed the transaction value to ₹ 18,56,418.78 as per Annexure-B to the show-cause notice and estimated duty liability of ₹ 5,85,917/- and accordingly, the Revenue called the case as of mis-declaration of the value and the differential duty was worked out to ₹ 5,53,322/-. Accordingly, a show-cause notice dated 4.3.2004 was issued to the appellants and the CHA as to why not the transaction value at ₹ 99,530.66 shown in the invoices and under Bill of Entry, be not rejected and the price of the goods at ₹ 18,56,418.78 should not be taken as the correct transaction value under Rule 5 of the Customs Valuation rules, 1988, read with Section 14 of the Customs Act and as to why not the goods not be held liable to confiscation under Section 111(m) of the Customs Act, 1962 and further an amount of duty short paid ₹ 5,53,322/- be not recovered along with interest and why not further penalty be imposed. 2.5 The appellants appeared and contested the show-cause notice, the same was adjudicated vide Order-in-Original dated 11.10.2006 rejecting the transaction value as shown in the Bill of Entry under Rule 10A of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import level and are, therefore, relevant. It is seen that valuation arrived at under Rule 4(1) of Customs Valuation Rules, 1988, as per Rule 3(2), the value should be determined by proceeding sequentially through Rule 5 to 8 and conversely if the transaction value can be determined under Rule 4(1), and does not fall under any exception in Rule 4(2), there is no question of determining the value under subsequent Rules. Thus, the present case follows the law as laid down in the case of M/s Eicher Tractors - 2000 (122) ELT 321. Accordingly, the adjudication order was held to be legal and proper. 3. Being aggrieved, the appellants preferred the appeal before this Tribunal on among others the following grounds that the Commissioner (Appeals) has failed to appreciate that the Bill of Entry was provisionally assessed. As such, notice under provisions of Section 28 of the Customs Act is not sustainable in case where the Bills of Entry are provisionally assessed. Accordingly, the duty assessed is not sustainable. 3.1 The Commissioner (Appeals) have failed to appreciate that the value of the goods declared under the Bill of Entry is the transaction value under Rule 4 read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the same. 3.4 It is further pointed out that quotation letters relied upon by the Revenue are not reliable, and fit to be discarded. Further, the Bill of Entry relied upon by the Revenue are in respect of different quantities and/or country of origin. It is further contended that the Revenue have failed to prove the case of undervaluation and accordingly, has not discharged its onus. The under-valuation arrived at by the Revenue ignoring the country of origin and the quantity, have rendered their finding perverse and not reliable, is thus fit to be set aside. Reliance is placed on the ruling in the case of Nitee Trading Company Vs. Commissioner of Customs (Sea), Chennai - 2003 (161) ELT 279 (Tri-Chennai), Makalu Trading Ltd. Vs. Commissioner of Customs, Mumbai - 2014 (310) ELT 622 (Tri-Mum). The appellant further relies on ruling of the Hon'ble Kerala High Court in the case of Karnvir Mehta Vs. Commissioner of Customs, Cochin - 1998 (97) ELT 42 (Ker), wherein it has been held that quotation and letters cannot be relied upon for discarding the transaction value. 3.5 The appellant further contended that where contemporaneous import data is available, the lowest value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value. The finding that the evidence was not adduced to show that the invoice value was much lower than the value of contemporaneous imports, it was held that the finding of the Commissioner (Appeals), rejecting the transaction value is unjustified was upheld. Accordingly, the appellant prays for allowing the appeals and setting aside the impugned order. 4. The learned AR for the Revenue, Mr. Ahibaran, relies on the impugned order. He further states that the modus operandi for import adopted, indicates to under-valuation and as such prays for dismissal of the appeal. 5. Having considered the rival contentions, we hold that the assessable value cannot be determined on the basis of quotation. Quotations are merely indicative price having no relevance as to the Country of Origin, which is admittedly not mentioned on the quotation. With respect to the IC No. 0800HCN, (Sr. No. 2 of Annexure-B to show-cause notice), the Revenue has relied on the NIDB website, wherein the number of ICs are not reflected at all, whereas under the Bill of Entry, the Country of Origin is other than Japan. In the case of Bill of Entry No. 655048 relied upon by the Revenue, copy of the same have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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