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2016 (9) TMI 1119 - CESTAT KOLKATA

2016 (9) TMI 1119 - CESTAT KOLKATA - TMI - Valuation - loading the assessable value on the basis of other brand of goods - Westride Brand - LingLong Brand - CIF value - whether or not first appellate authority has correctly loaded the assessable value of the Chinese origin tyres? - Held that: - No evidence is available on record that both the above brands of tyres of Chinese origin are having same qualities and market standards in China Identical goods and similar goods are defined in Rule 2 (c) .....

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DELHI] relied upon where it was held that quality, import of origin, place and time of import are relevant factors and NIDB data cannot be made the basis for enhancement of value. - The quantity of tyres imported by the appellant is much more than the quantity imported in the relied upon bill of entry. Further independent Delhi importers have also imported China origin tyres at values lower than the value of relied upon bill of entry. The brand name of the tyres imported by the appellant is .....

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jit Chakraborty, Advocate & Sri Partha Banerjee, Advocate For the Appellant Sri S.K. Naskar, A.C. (A.R.) For the Respondent ORDER Per Shri H. K. Thakur These appeals have been filed by the appellant against Order-in-Appeal Nos.KOL/CUS/CKP/161/2006 dated-25/08/2006 and KOL/CUS/CKP/248-250/2008 dated-29/08/2008 passed by Commr. of Customs (Appeals), Customs House, Strand Road, Kolkata-1 as first appellate authority. 2. Sri Arijit Chakraborty (Advocate) and Sri Partha Banerjee (Advocate) appear .....

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pt the invoice value. That goods were cleared provisionally by accepting a bond and Bank guarantee as heavy demurrage was being incurred by the appellant. That CIF value of the imported goods was proposed to be enhanced to US$84.20 (CIF) per set on the basis of another 295 sets of tyres of Westride brand imported by M/s. Core International Raipur from China. That appellant furnished 4 bills of entry where similar types of Chinese origin tyres were imported around the same time by the importers b .....

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only for 295 sets as compared to higher quantities contracted and imported by appellant. Learned Advocate relied upon the following case laws in support of his argument: (i) M/s. Deekay Exports Vs. Commr. of Customs, Calcutta -1997 (92) E.L.T. 281 (Tribunal) (ii) Commr. of Customs, Mumbai Vs. J.D. Orgochem Ltd. 2008 (226) E.L.T. 9 (S.C.) (iii) Commr. of Customs, Mumbai Vs. Mahalaxmi Gems 2008 (231) E.L.T. 198 (S.C.) (iv) Commr. of Customs, New Delhi Vs. DM International 2013 (289) ELT 169 (Tri.- .....

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the subsequent Order-in-Original relied upon the Order-in-Appeal CUS/CKP/161/2006 dated-21/8/2006 while loading the assessable value. 3. Shri S.K. Naskar A.C. (A.R.) appearing on behalf of the Revenue argued that relied upon consignment of M/s. Core International, Raipur is contemporary and are for similar tyres and has been rightly made applicable by the Adjudicating authority and upheld by the first appellate authority. Learned A.R. thus strongly defended the orders passed by the first appella .....

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Chinese tyres. No evidence is available on record that both the above brands of tyres of Chinese origin are having same qualities and market standards in China Identical goods and similar goods are defined in Rule 2 (c) & 2 (e ) of the Customs Valuation (Determination of Valuation) Rules, 1988) as follows: 2. Definitions - (1) In these rules, unless the context otherwise requires, (c) identical goods means imported goods - (i) which are same in all respects, including physical characteristic .....

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directly or indirectly by the buyer on these imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of these imported goods; (e) similar goods means imported goods - (i) which although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable with the goods being valued having regard to the quality, reputation and the existence o .....

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ction with the production and sale for export of these imported goods; Appellant has also relied upon contemporary imports of Chinese tyres made by other importers of Delhi at lower prices which have not been considered by the lower authorities. It is difficult to appreciate as to why one import made by M/s. Core International, Raipur is more authentic than imports made by other importers elsewhere in the country. There is no evidence that branded tyres imported by the appellant are qualitiwise .....

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port of 144 MT of glycerine imported by Appellant Deekay Exports. 4.2 In the case of C.C. Mumbai Vs. Mahalaxmi Gems [ 2008(231) ELT 198 (S.C.)] Apex Court laid following ratio on rejection of transaction/invoice value. 7. Assessee, being aggrieved, filed appeal before the Tribunal. Tribunal by its impugned order has set aside the findings recorded by the Commissioner (Customs) by observing that the value of the goods that was declared was the transaction value. The genuineness of the invoice tha .....

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ourt in the case of Eicher Tractor Ltd. v. Commissioner of Customs reported in 2000 (122) E.L.T. 321, held that the transaction value would have to be accepted until and unless it is shown by some contemporaneous evidence that the price declared in the invoice was not the correct price. 8. In the present case, the department has failed to show from any contemporaneous evidence that the invoices were either fabricated or fake or that any relationship existed between the importer and the exporter. .....

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