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TMI Blog2007 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... ere imported. In all these goods, the year of manufacture was not mentioned. Prima facie, the Customs Officers doubted the value of the imported goods. There was also licensing violation. It was felt that the second hand Photocopiers and the second hand Monitors required licences under the EXIM Policy for their import. The licences were also not produced. The Customs authorities wanted the manufacturer's invoice from the appellants. The appellants were not in a position to produce the same. They were also not in a position to indicate the year of the manufacture of the second hand photocopiers and monitors. 3. In the second appeal, which is similar to the first one, the goods imported were 85 numbers of Used Canon Photocopiers. In this case also, after examination it was found that there was some discrepancy with regard to the models declared and the models, which were available in the consignment. The discrepancy is that they had actually declared 11 Canon models MP 4050. However, what was available on opening the packages was Canon MP 4150. In view of these discrepancies and also due to the non-submission of the manufacturer's invoice and the particulars regarding the year of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the EXIM Policy, there was no need for producing any licence. However, both the Photocopiers and the Monitors were held liable for confiscation on account of the mis-declaration of the description and value. Hence, they were held liable for confiscation. A redemption fine of Rs. 1,00,000/- was imposed and penalty of Rs. 35,000/- under Section 112 was imposed in respect of photocopiers. In respect of monitors, a Redemption Fine of Rs. 30,000/- was imposed and penalty of Rs. 12,000/- under Section 112 was imposed. The appellants approached the Commissioner (Appeals) who upheld the valuation adopted by the lower authority. It was held by the Commissioner (Appeals) that the mis-declaration of certain models is only a technical lapse and there is no evidence on record that it was done with an intention to evade duty. Therefore, the redemption fine of Rs. 1,00,000/- was reduced to Rs. 20,000/- only. In view of the Atul Commodities decision, the redemption fine and penalty imposed in respect of the photocopiers were set aside. 5. In the second appeal, which is against the Order-in-Appeal No. 64/2005, the impugned goods are 85 used Canon photocopiers of various models. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice values could not be accepted as representing transaction value and the same merit rejection in terms of Rule 10A of the Customs Valuation Rules, 1988. Rule 5, Rule 6 or Rule 7 of the Customs Valuation Rules, 1988 would not be applicable as the goods are not similar or identical in nature and the extent of their usage etc., date of manufacturing were not known, hence, not comparable." It was urged that in terms of the settled case-laws, the burden is on the Revenue to show the reasons for rejecting the Transaction Value. It was emphasized that in terms of the Customs Act and also the Customs Valuation Rules, the normal practice is to accept the Transaction Value and if the Transaction Value is rejected, then, it should be rejected in terms of the Valuation Rules, especially Rule 4(2). It should be shown that the case falls under any one of the exceptions enumerated in Rule 4(2) of the Valuation Rules. In the present cases, the Revenue has not discharged this burden. Moreover, the learned Advocate emphasized the point that the issue is not the correctness of the valuation method adopted by the department by engaging a Chartered Engineer and giving maximum depreciation in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the matter elaborately referring the decision of the Hon'ble Supreme Court in the case of Eicher Tractors Ltd. and some other cases and had come to the conclusion that Revenue has not given proper grounds under Rule 4(2) in order to reject the Transaction Value. In that case, the Commissioner (Appeals) had accepted the Transaction Value declared by the appellants and passed the order in favour of them whereas in the present case, it was pointed out that the Appellate Authority has not given any reasoned order and he has simply upheld the order of the original authority. 9. The learned Departmental Representative pointed out that the appellants had actually mis-declared the description of the goods. He said the brand names declared by them were not the same when they were examined. As the appellants had not made a proper declaration, according to the learned Depart mental Representatives the Revenue is not bound to accept the Transaction Value. Moreover, he took us through Rule 10 and 10A and urged that in respect of the goods, which are second hand in nature, it was not possible to arrive at the correct value in the absence of manufacturer's invoice and the year of manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the only reason that the appellants did not produce the manufacturer's invoice and the year of manufacture is not very fair in the absence of other evidences. When different models of second hand goods are obtained from a trader, it would be very difficult for the importer to obtain the manufacturer's invoice. It is by now well settled that in order to reject Transaction Value, the Revenue has to give proper reasons, which are enumerated in Rule 4(2) of the Customs Valuation Rules. In other words, the Transaction Value is normally to be accepted and when it is rejected, it should be rejected for reasons stated in the exceptions enumerated in Rule 4(2) of the Valuation Rules. This has not been done in both these appeals. The appellants have relied on a large number of case-laws. 10.1 The Hon'ble Supreme Court, in the Tolin Rubbers P. Ltd. v. CC, Cochin - 2004 (163) E.L.T. 289 (S.C.) case, has dealt with the rejection of the Trans action Value in respect of second hand machinery. In that case, the assessing officer determined the Transaction Value of the second hand machinery in terms of Rule 8 of the Customs Valuation Rules on the basis of the Chartered Engineer's certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bench followed the above decisions of the apex court and accepted the Transaction Value of the goods imported by the assessee. In the result, the valuation done by the Commissioner is set aside and it is directed that the declared value of the goods be accepted for the purpose of levy of duty thereon." 10.4 Therefore, in the present case also, we find that no proper grounds have been made out for rejection of the Transaction Value in terms of Rule 4(2) of the Customs Valuation Rules. In these circumstances, the Transaction Value, as declared by the appellants have to be accepted. Further, the learned Departmental Representative was at pains to show that the mis-declaration of the brands was done only with a view to evade Customs duty. So he was very emphatic that on this ground alone, the Transaction Value is liable to be rejected. However, we find that as regards the mis-declaration of brands, the Commissioner (Appeals), in the impugned OIA 63/2005-Cus, has stated as follows : "However, in so far as mis-declaration in regard to certain models being not declared, it is definitely a technical lapse. There is no evidence on re cord that it was done with an intention to evade duty". ..... X X X X Extracts X X X X X X X X Extracts X X X X
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