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2016 (3) TMI 888 - CESTAT MUMBAI

2016 (3) TMI 888 - CESTAT MUMBAI - TMI - Demand of differential duty - Under-valuation and mis-declaration of goods - Transaction value rejected of imported ball valves and check valves - Held that:- the methodology adopted by the adjudicating authority for redetermination of the value of the imported consignments is totally on presumption and surmises. The adjudicating authority has come to a conclusion that imported ball valves contained brass content of 76% and iron content of 24%, zinc conte .....

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inc. It is also surprising to note that the adjudicating authority has relied upon only the statement of Shri S.K. Dhawan to hold that the valves were having brass and zinc content as mentioned. - The adjudicating authority has rejected the transaction value as filed by the appellant without any reasoning or finding. The submission of appellant importer that they had submitted details of contemporaneous imports of the same goods and the value seems to be more or less is same as declared by t .....

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etail given by the appellant. - The adjudicating authority has come to a conclusion that there was under-valuation as the appellant importer did not produce the manufacturer’s invoice nor catalogue which is totally not in consonance with the law, as these consignments were cleared by the same department when the bills of entries were filed and the documents as produced were accepted as correct at that time. If the authorities had entertained any doubt, they should have called for these docum .....

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any evidence it is not possible to accept the statement that the transaction value and the declared value were not actual transaction value. - Therefore, Demand of differential duty can not be raised and the impugned orders are set aside as unsustainable. - Decided in favour of appellant with consequential relief - Appeal No. C/85981, 85982, 85993, 85851/13 - A/86428-86431/16/CB - Dated:- 2-2-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petiti .....

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t importers) were engaged in import of ball valves/check valves and cartridges etc. through JNPT, ICD Mulund. The goods were imported during the period 21.08.2008 to 30.04.2010 in the case of appellant importer M/s. Essfo Impex Pvt. Ltd. and in the case of appellant importer M/s. Ess Dee Trading Co. the imports were during the period of 16.05.2006 to 22.11.2009. They filed Bills of Entry and the said goods were cleared after final assessment of bills of entry. Subsequently, after getting specifi .....

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ement of Shri S.K. Dhawan also agreed that there was under valuation. Show-cause notice dated 06.05.2011 was issued. All the appellants contested the show-cause notice on merits, limitation on the ground also there being no contemporaneous import shown by the Revenue. The adjudicating authority after following due process of law, did not agree with the contentions raised by the appellants, confirmed the demand of differential duty with interest and also imposed penalties. Further the adjudicatin .....

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valves content 70% of brass and 30% of zinc. It is his submission that the said findings of the adjudicating authority are totally erroneous as there is no test conducted on the goods imported to ascertain whether the Ball valves and Check Valves were having the content of brass and zinc as stated by Shri S.K. Dhawan. It is his further submission that the cost factor cannot be adopted for valuation, when the constituent of the imported consignments are not known; LME price cannot be relied upon .....

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are nothing but presumptions and surmises. It is his further submission that an enquiry conducted by the department on the manufacturers in India is totally one sided and never informed to the appellant. It is his submission that the enquiries conducted with the manufacturers of such items is also vitiated as the goods imported were competing goods hence the reliance placed on such manufacturers views is of interested parties hence needs to be discarded as the adjudicating authority did not giv .....

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e case of CC v. Prabhu Dayal Prem Chand - 2010 (253) ELT 353, Ruchi Associates v. - 1992 (61) ELT A134 (S.C.). He also relied upon the decision of this Tribunal in the case of Radhey Shyam Ratanlal vide final Order No. A/3972/15/CB dated 23.12.2015 for the proposition that contemporaneous imports were discarded, accordingly requirement of Rule 5(3) of Customs Rules were validated and the appeal was allowed. He would submit that a similar issue was decided by this Bench in the bunch of appeals in .....

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zinc scrap is more than the value of the imported consignment which would indicate that there was very heavy under-valuation. He would submit that such under-valuation is confirmed by Shri S.K. Dhawan in a statement recorded under Section 108 of the Customs Act, 1962 hence the argument put forth by the learned Counsel needs to be discarded as Shri S.K. Dhawan has not retracted the statement. It is his further submission that the judgement of the Apex Court in the case of Collector of Customs vs .....

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k valves. The imports were made during the material period and the bills of entry were finally assessed. 6.1 The adjudicating authority has rejected the transaction value of the appellant importer in the impugned orders by recording the finding that he disagree with the transaction value due to following reasons:- (a) That the prices of the brass/zinc valves were less than the LME price of valves and scrap of brass and zinc. (b) Statement recorded of Shri S.K. Dhawan indicated that the said valv .....

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rials. In his own statement the value of metal brass and zinc was much higher. 6.4 The transaction value was ridiculously low. 7. We find that the argument put forth by learned D.R. in support of the impugned orders and reasoning of the impugned orders for confirmation of differential duty are flawed for more than one reason. 7.1 Firstly, we find that the methodology adopted by the adjudicating authority for redetermination of the value of the imported consignments is totally on presumption and .....

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judicating authority is not in consonance of the law. There is nothing on record to indicate that samples were drawn from the consignment and sent for testing to Dy. Chief Chemist and Examiner of the Department to ascertain the contents of brass and zinc. It is also surprising to note that the adjudicating authority has relied upon only the statement of Shri S.K. Dhawan to hold that the valves were having brass and zinc content as mentioned. 7.2 Secondly, we find that the adjudicating authority .....

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evidence of contemporaneous import of higher value. In the case in hand, it is the submission of appellant importer they had submitted details of contemporaneous imports of the same goods and the value seems to be more or less is same as declared by the appellant importer is not addressed to and also surprising to note that the adjudicating authority has not recorded a single sentence of finding on such contemporaneous import detail given by the appellant. 7.3 Thirdly, we find that the adjudica .....

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ocuments at the time of clearance of the consignments. 7.4 Fourthly, we find that the adjudicating authority has recorded that the declared value were not actual transaction value paid or payable by the importer; are incorrect findings as they are not evidenced in any form; if the adjudicating authority has to come to such a conclusion in the impugned order there has to be a findings that the appellant importer had paid additional amount to the exporters in some way or other with proper evidence .....

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ellant importer, refusing to look to such evidence is incorrect as the value in the contemporaneous imports were accepted by the department in respect of some importers. We reproduce the findings of this Bench in the case of Ajay Exports (supra). (c) We also note that the adjudicating authority has refused to look at other contemporaneous imports, which are not the subject matter of the present show cause notice on the ground that there was gross undervaluation being done by the trade. We find t .....

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