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2016 (12) TMI 1028 - CESTAT MUMBAI

2016 (12) TMI 1028 - CESTAT MUMBAI - TMI - Valuation of imported goods - Pistachio - Rule 8 of Customs Valuation Rules, 1988 - enhancement of value on the basis of contemporaneous import - Held that: - The fact that the price of US$ 4.8 per kg is of the Pistachio crop of Nov - Dec, 1999, whereas the appellant’s import of Pistachio is from the crop of 1998 at US$ 3.6 per kg. which is vital fact which should have been considered by the lower authorities - in case of agriculture produce, quality of .....

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to 1575, 1584 to 1592/05 - Order No.A/94010-94081/16/CB. - Dated:- 28-11-2016 - Mr. Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Pradeep Jain, Advocate for the Appellants Shri. M.K. Sarangi, Joint Commissioner(A.R.) for the Respondent Per : Ramesh Nair In all these appeals, the common issue involved is the valuation of the imported Pistachio. The appellant declared the price @ US$ 3.6 per kg. All the imports were made during July and September, 1999. The show cause notic .....

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efore the Commissioner(Appeals) mainly on the ground that show cause notice invoked Rule 8 whereas the demand was confirmed invoking Rule 5 which is the beyond the scope of show cause notice. The Ld. Commissioner(Appeals) vide appellate order dated 20-4-2000 allowed the appeals on the sole ground that the adjudication order has travelled beyond the scope of show cause notice inasmuch as alleged demand has been confirmed by invoking Rule 5 which was not invoked in the show cause notice. The depar .....

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g authority however confirmed the proposed demand under Rule 5, as was invoked in the show cause notice, vide adjudication order dated 21-2-2205. The appellant being aggrieved by the Order-in-Original dated 21-2-2005 filed appeals before the Commissioner(Appeals). The Ld. Commissioner (Appeals) vide appellate order dated 13-9-2005 dismissed the appeals holding that value is more appropriately determined under Rule 8 of Customs Valuation Rules, 1988 and consequently determined the value invoking .....

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ce. He submits that Tribunal by this remand order has endorsed that order cannot travel beyond the proposal made in the show cause notice. In the present round of litigation also similar error was done by the Commissioner(appeals) inasmuch as though in the second show cause notice enhancement of value was proposed invoking Rule 5 of Valuation Rules, 1988 and also the Adjudicating Authority confirmed the valuation under Rule 5. However Commissioner(Appeals) determined the enhancement of value inv .....

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hat the appellants right from beginning maintained the stand that price of old crop is obviously lower than new crop, as by passing of time the product quality get deteriorated and the price of the old agriculture crop and new crop always differs. Both the lower authorities have not given any heed to this vital fact. He further submits that there is no tip of evidence that appellants have undervalued the goods by making payment of extra consideration through different mode. Therefore even before .....

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bmission, he placed reliance on following judgments.: (a) Kailash Chand Jain vs. Collector of Customs, 1996 (86) ELT 529 (T) (b) Unik Traders vs. Commissioner of Customs, 2005 (186) E.L.T. 457 (T) (c) Nitee Trading Company vs. Commissioner of Customs, 2003 (161) E.L.T. 279 (T) (d) Global Industries vs. Commissioner of Customs, 2011 (272) E.L.T. 724 (T) (e) Diamond Traders vs. Commissioner of Customs, 2009 (241) E.L.T. 282 (T) (f) Associated Plastics Industries vs. Commissioner of Customs, 2004 ( .....

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hat in the first round of litigation the show cause notice was issued proposing enhancement of the value invoking Rule 8 whereas the Adjudication order and the appellate order were travelled beyond the proposal of show cause notice by invoking Rule 5. Taking the cognizance one of this error Tribunal directed the adjudicating authority to issue a fresh show cause notice. In the present round of litigation a fresh show cause notice was issued invoking Rule 5 for enhancement of value and the demand .....

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