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2016 (7) TMI 143 - CESTAT BANGALORE

2016 (7) TMI 143 - CESTAT BANGALORE - TMI - Valuation - Commissioner of Customs (Appeals) accepted the discounted price of import which was in the range of 87% to 97.35% - adoption of transaction value of contemporaneous imports - Held that:- The Departmentís stand is that burden of proof to prove that the transaction value is as per contemporaneous imports is on the importer but it is not so. Actually here the onus is on the Department- Revenue to prove that the value declared by the Respondent .....

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onsidering the above discussions and the case laws referred above, we reject the appeal filed by the Revenue and uphold the impugned order passed by the Commissioner (Appeals). - Decided against the revenue. - C/CROSS/47/2011 in C/2340/2010-DB - Final Order No. 20341/2016 - Dated:- 7-2-2016 - Smt. Archana Wadhwa, Judicial Member and Shri Ashok K. Arya, Technical Member Mr. Pakshirajan, AR - For the Appellant Ms. Neetu James, Advocate - For the Respondent ORDER Both the parties have been heard in .....

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8 set 20085.75 82,59,506 16-01332-11 HP Integrity BL860C 2P/4C 1.6/18 MB Proc 8 set 13609.75 55,96,495 16-01333-11 HP SY Support Plus 24 SVC 1 set 38036.99 19,55,159 16-01334-11 Veritas Volume Manager LTU for Servers 12 set 20477.39 1,26,30,830 16-01335-11 1.2. Deputy Commissioner of Customs rejected the value declared by the import viz., M/s. CMC Ltd., Mumbai saying that discount is in the range of 87% to 97.35% and he allowed maximum discount of 55% on the HP list price goods covered under 5 .....

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learned AR Shri Pakshirajan, who has mainly given the following submissions. (i) Discount offered to the extent of 97.35% is abnormal and rejection of declared value by the original authority is legal and proper. (ii) Importers did not prove that the discount of 97.35% offered by M/s. Hewlett Packard Sales (India) Pvt. Ltd. (HPI) is the normal discount which is offered to other importers at the same commercial and quantity level. (iii) This import of M/s. CMC Ltd. cannot be compared with the imp .....

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count cannot be considered as normal discount. (v) The order of the Commissioner (Appeals) order is not fair and legally correct. 3. Respondent viz., M/s. CMC Ltd., Mumbai, has been represented by the learned advocate Ms. Neetu James, have mainly argued as follows: 3A. IDENTICAL IMPORTS WERE ASSESSED ADOPTING THE DECLARED VALUE AND CLASSIFYING THE GOODS UNDER 8471 The declared price is an agreed consolidated price commonly known as bundled price. It was a quotation of M/s. Hewlett Packard Sales .....

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of ITC. The equipment of the value of ₹ 4,20,09,356/- which was meant for supply to the Kolkata Centre of ITC, was imported by the Respondents through Kolkata Air Cargo vide Bill of Entry No. 536571 dated 26.12.2008.The said Bill of Entry was assessed by the Customs authorities at Kolkata Air Cargo classifying the imported goods under Chapter Heading 8471 and adopting the declared value. The above assessment is not challenged by the Department,when the Kolkata Customs under Bill of Entry .....

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ough Bangalore. In this regard, they placed reliance on the following decisions: (a) CCE vs. Bal Pharma Ltd. reported in 2010 (259) E.L.T. 10 (S.C.) (b) CCE, Allahabad Vs. Surcoat Paints (P) Ltd. reported in 2008 (232) E.L.T. 4 (S.C.) (c) CCE, Vadodara vs. Gujarat State Fertilizers & Chem. Ltd. reported in 2008 (229) E.L.T. 9 (S.C.) (d) Birla Corporation Ltd. vs. CCE reported in 2005 (186) ELT 266 (SC) (e) Jayaswals Neco Ltd. vs. CCE, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.) (f) Jyoth .....

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n question. From the documents submitted by them that the commercial nature of the transaction is clearly established and the declared prices fully satisfy all the criteria laid down in Section 14 of the Customs Act. 3C. VALUE DECLARED BY THE RESPONDENTS IS THE CORRECT VALUE OF THE GOODS IMPORTED The discount percentages derived from the price list of HP start from as low as 45% and go upwards to 47.95%, 60%, 61% etc. for other items and not a uniform discount of 97.35%. In terms of Rule 3(2) of .....

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ndents submit that as the exceptions enumerated in Rule 3(2) are absent in the instant case, the transaction value of the goods are not liable to rejected. Further the department has not demonstrated that contemporaneous imports were made at a higher price than that declared in the impugned invoices. They placed reliance on the following decisions: i. CC Vs. South India Television Pvt. Ltd reported in 2007 (214) ELT 3 (SC) ii. Varsha Plastics Pvt. Ltd. Vs UOI reported in 2009-TIOL-16-SC- iii. CC .....

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hrough contemporaneous imports lies on the department.It is now well settled law that the burden of showing contemporaneous imports cannot be shifted to the importer.In this regard, reliance is placed on the following decisions:- (a) CC, Mumbai Vs JD Orgochem Limited :2008 (226) E.L.T. 9 (S.C.) (b) CC, Calcutta Vs South India Television Pvt Ltd : 2007 (214) ELT 3 (SC) 3E. THE IMPORTED GOODS ARE RIGHTLY CLASSIFIED UNDER CTH 8471 49 00 It is submitted that the classification of the imported goods .....

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units of automatic data processing machines are to be classified in heading 8471. In the instant case, Cell Boards qualifies to be called as units for the purpose of said note and therefore should be classified under CTH 8471. 3F. BUNDLED PRICES TO BE ASSESSED BASED ON THE TRANSACTION VALUE The entire transaction has been treated as a bundled or package deal where consolidated and single price has been approved upon for the goods covered by the impugned bill of entry though covered by five s .....

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arefully examined. We find that impugned order by Commissioner (A) is quite elaborate. We have carefully gone through the discussions, analysis and the case laws quoted in the impugned order. The impugned order as concluded is as follows: …. the transaction value declared by the appellant shall be accepted in view of the identical nature of goods with similar price supplied to CBEC; clearance of identical goods supplied from the same supplier at the same time for the same client at Kolkat .....

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ioner and hold that the assessment be done as per the declared value in line with the assessments done in Kolkata Customs House. 5. We find that there has not been sufficient evidence with the Department to challenge the declaration made by the respondents in their import documents where-under they were clearing their subject goods. There is no cogent and reasonable basis available with the department to have a different view on the assessment than the assessment done for the identical goods by .....

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