TMI Blog2016 (12) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial) And Mr. Raju, Member (Technical) Shri. Kamal Puggal, Asstt. Commissioner(A.R.) for the Appellants Shri. A.K. Prabhakar, Advocate for the Respondent Per : Ramesh Nair The respondent M/s. Vazir Polymers Ltd imported a consignment of 79.040 MTs of LLDPE/HDPE mixed granual/powder (floor sweeping) and filed Bill of Entry No. 1509342 dated 31.5.2001. The impugned goods were imported at a price of US$ 225 PMT CIF in pursuance of contract dated 2-3-2001. The said contract was registered in the Custom House. The goods were examined on first check basis and samples were drawn and forwarded to DYCC and IIT Powai for testing. On examination, the description of the impugned goods was confirmed, the goods were assessed provisionally under the order of Addl. Commissioner and subsequently addl Commissioner vide order of assessment No. S/26-Misc-209/2001 Gr. IIB(JCH) dated 27-6-2001 ordered the goods to be valued at US$ 352.35 PMT CIF. Aggrieved by the said order, the respondent filed appeal before the Commissioner(Appeals) who allowed the appeal vide Order-in-Appeal No. 44/2001APVL(JCH) dated 11-10-2001. The Commissioner of Customs(JCH) filed appeal before the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submits that contemporaneous price which was ranging from US$ 250 to 350 PMT has been noticed and valuation was done as per standing order. He further submits that the PLATT price was largely accepted by the trade and the department. Therefore judgment relied upon by the Commissioner are not applicable. He further submits that judgment of Eicher Tracters Ltd Vs. Commissioner of Customs, Mumbai[2000(122) ELT 321 (SC)] has no application in the facts of the present case as the circumstances in the Eicher Tracters Ltd(supra) case was different inasmuch as when Eicher started procuring the goods from domestic supplier, the foreign supplier left with the stock of the same goods for which there were no buyer. In such a situation the supplier had to offer heavy discount on these goods and Eicher procured them with heavy discount, this is not the facts of the present case. It is his submission that the reliance of the Ld. Commmissioner(Appeals) on the case of Varsha Plastics Pvt Ltd Vs. Commissioner of Customs[2004(164) ELT 428(Tri. Del)] is not correct though said case is of valuation of floor sweeping but floor sweeping from one consignment to other varies depending upon the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods was ranging from US$ 250 to 350 PMT at the relevant time. We have gone through the standing order dated 31.12.1999 the relevant para. 1.10 in respect of floor sweeping is reproduced below: 1.10 Floor Sweepings shall be assessed after considering a discount up to 35% from the PLATT price of the prime material with the approval of the jurisdictional Addtional/Joint Commissioner. The PLATT price in respect of floor sweeping shall be taken of that material which predominates. If such predominance cannot be ascertained, the assessment shall be done by taking PLATT price of LDPE. The assessment of floor sweepings shall be done only after the first check by the AC/DC(Docks) clearly certifying that the goods imported are floor sweeping and the variety of plastic material predominant in floor sweepings shall be mentioned in the examination reports From the plain reading of the above para, it can be seen that for the purpose of arriving at the value of floor sweeping, it shall be arrived after considering the discounts after 35% from the PLATT price of the prime material. Thus, if the floor sweeping is of one particular polymer then 35% discount of that polymer should be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to establish that the goods in question is identical to the goods of contemporaneous imports. If this is so, then there is no purpose to analyse the judgments. Ld. Commissioner (Appeals) while allowing the respondent s appeal have after carefully considering entire issue come to the conclusion that enhancement of the assessable value is not tenable in the eyes of the law. Findings of the Commissioner(Appeals) is reproduced below: 8. I have gone through the records of the case, Hon'ble CESTAT Orders, submissions made by the appellant and tl-:e Customs Department and also the impugned Assessment Order. The appellants contended that the adjudicating authority has discarded the invoice value and enhanced the value on the basis of the price of goods prevalent at the relevant period in the PLATT's weekly bulletin after giving normal discount. The Additional Commissioner could not have discarded the price paid by the appellants, without there being any evidence of the said price not being the actual money paid or payable for the transaction value. There being no other evidence adduced by the Department showing that the price at which they have imported the goods was tain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent's submission that common method of Working the prices based on PLATT quotation read with guideline of the Standing order was the standard method used for valuation. PLATT prices were adopted as a guideline in terms of Standing Order No.747c /99 dated 03.12.1999 for the sake of uniformity and to delete any kind of bias. The Hon ble High Court has held that if the transaction value is ridiculously low, inquiry with regard to international prices of such goods become relevant and sometimes necessary. Department's contention is that the Appellant's price was very low and therefore, recourse to international prices becomes relevant and necessary. 10. However, I find the adjudicating authority has not discussed of any such commercial consideration that might have influenced the transaction between the parties nor there is any findings recorded that the price of US$225 PMT was not the actual price paid or payable by the appellant to the foreign supplier. Further, the adjudicating authority has not discussed about any documentary evidence that US$352.35 PMT was the price under Rule 5 of the Customs Valuation Rules, 1988. 11. After considering the submission made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led before CESTAT, the Department submitted four Ells of Entry(as detailed at Para 8 above), viz. Nos. 525596 dated 03.09.2001, 433082 dated 22.01.2001, 521672 dated 10.08,2001 and 511543 dated 15.06.2001, showing the said price range. However, I find there is material difference in the commercial level, quantity and country of origin of the said Bills of, Entries and the instant Bill of Entry. I find the country of origin, quantity of import and the price of ::report of the cited Bills of Entries is distinct from the Bill of Entry filed by the appellant. Further, the quantity and composition of floor sweeping would vary from consignment to consignment resulting in predominance of one polymer over the other in one consignment and vice-versa in other. In a similar case as the instant appeal, the Hon'ble Tribunal in the case of Varsha Plastics Pvt Ltd Vs. Commissioner of Customs [2004 (164) ELT 428(Tri-Del)] has held that, the transaction value has been rejected on the ground of comparable imports at a much higher value. The comparison hothever, does not appear to be reliable in view of huge difference in quantities under purchase'. In view of the above, I find the transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts Ltd Vs. CC, Vishakapatnarn [2000(116)ELT.715] observed that unlike London Metal Exchange. where actual trading of metal takes place i.e. transactions are involved and which are reflected in the LME Bulletin, PLATT price is not based on transaction but merely is a compilation of price ranges of various plastic materials. Furthermore, as these are region- wise (and not country wise), therefore for all these reasons they do not represent alternate transaction values. We are hence unable to accept the proposition in the impugned orders that the assessable value can be enhanced on their basis in the absence cf instances of contemporaneous imports and as no clear and convincing evidence to prove any fraud in the declared values . 16. In view of the above discussed Judgments, I find that the enhancement of the assessable value is not tenable in the eyes of law. Therefore, I find the impugned order viz. Assessment Order No.S/26-Misc-209/2001 Gr.IIB (JCH) dated 27.06.2001, passed by the Adjudicating authority is not legal and proper and hence required to be set aside. Further, I find the Order Customs F.No.S/26-Misc-209/2001 Gr.II C D dated 12.02.2009, passed by the Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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