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2016 (12) TMI 1099 - CESTAT MUMBAI

2016 (12) TMI 1099 - CESTAT MUMBAI - TMI - Valuation - import of a consignment of 79.040 MTs of LLDPE/HDPE mixed granual/powder (floor sweeping) - goods were imported at a price of US$ 225 PMT CIF - on examination goods found to be of US$ 352.35 PMT CIF - Ld. Commissioner(Appeals) on the case being remanded confirmed the valuation done by respondent and held the value at US$ 225 PMT CIF to be correct - whether the contention of the Revenue that the price should be at US$ 352.35 PMT CIF, justifie .....

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cided against Revenue. - APPEAL NO. C/1298/12 - ORDER No.A/94009/16/CB - Dated:- 28-11-2016 - Mr. Ramesh Nair, Member(Judicial) 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 i .....

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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 Tribunal against the above order of the Commissioner(Appeals). The Tribunal vide Order No. A/347/WZB/2004/C II dated 1/6/2004 remanded the case back on the ground that the Commissioner(Appeals) did not .....

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. No. S/26-Misc-209/2001 Gr. II/(C&D) dated 12-2-2009 finally assessed all the aforesaid 83 provisionally assessed bills of entries considering unit price of US4 352.35 PMT. Aggrieved by the said order dated 12-2-2009 passed by the Asstt. Commissioner of Customs, Gr. II(C&D) respondent filed appeal before the Commissioner(Appeals), who vide Order-in-Appeal No. 482(Gr. II C&D)/2009 JNCH/Imp-114 dated 29-9-2009 upheld the order dated 12-2-2009. Aggrieved by the said order-in-appeal dat .....

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. The Ld. Commissioner(Appeals) allowed the appeal of the respondent therefore Revenue filed this appeal before us. 2. Shri. Kamal Puggal, Asstt. Commissioner(A.R) appearing on behalf of the Revenue reiterating the grounds of appeal submits that the Commissioner(Appeals) order is not proper and legal for the reason that reliance placed on the decision in case of Adani Exports Ltd Vs. CC, Visakhapatnam[2000(116) ELT 715] is not correct as the said judgment is clearly distinguishable. He submits t .....

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ot 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 a .....

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e applicable. 3. On the other hand, Shri. A.K. Prabhakar, Ld. Counsel for the appellant submits that the goods involved in the present case is mixed sweeping material of different polymers. The import was made under contract. The department did not adduce any evidence to show that price declared by the respondent is not correct and the same is influenced by any other consideration. He submits that the floor sweeping material is not a standard in nature and quality, therefore the price of the par .....

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me goods or otherwise, hence the same is not acceptable. He submits that department could not prove that prices of contemporaneous import is of the identical goods that mean whether the composition of floor sweeping material was the same or otherwise, for this reason also the declared price could not be disputed. In support he placed reliance on the following judgments: (a) Commissioner of Customs, New Delhi Vs. Prabhu Dayal Prem Chand[2010(253) ELT 353(S.C.)] (b) Varsha Plastics Pvt Ltd Vs. Uni .....

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venue s appeal is that the Adjudicating authority has rightly valued the goods in terms of standing order No. 7493/1999 dated 31.12.1999 issued by the Commissioner of Customs(JNCH), Nhava Sheva. The Revenue also contended that contemporaneous price of the 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 cons .....

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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 provided. However, if the floor sweeping is a mixed materi .....

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shall be mention in the examination reports. However no such exercise was carried out to ascertain the composition of material which bring out the predominant material in the floor sweeping. In absence of such vital fact on record the price declared by the respondent cannot be disputed. The goods in question is floor sweeping of various plastic polymers. The price of the goods varies from one lot of floor sweeping to another lot of floor sweeping, therefore every lot consists of different compo .....

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the lot. Therefore, the department is miserably failed to carry out the initial process to ascertain the actual nature of the goods therefore the department could not have disputed the price declared by the respondent. Even if the price of the contemporaneous import has to be applied, nature of the floor sweeping goods in the present case and in the contemporaneous import should be identical for that the test reports of the goods of contemporaneous import should be placed on record and only afte .....

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udgments. 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 adju .....

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ch they have imported the goods was tainted or it was a case of under valuation. Hence, invoice price should be the transaction value for the assessment of impugned goods in question as held by the Hon'ble Supreme Court in the case of Eicher Tractors Ltd, [2000(122) ELT321(SC)]. The Department has relied on imports made by four Bills of Entry (as detailed below), which cannot be compared with the goods imported under the instant Bills of Entries. Sr. No Bill of Entry Date of Report Descripti .....

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hese relied upon imports is not relevant in deciding the transaction value of appellant's imported goods. As per Rule 5 of the Customs Valuation Rules, 1988, valuation of imported goods should be transaction value of identical goods sold for export to India and imported at nr about the same time as the goods being valued. In the case of Vintel Distributors Pvt. Ltd Vs. Commissioner of Customs [2002(149)ELT 145), the tribunal has held that "the Revenue has not produced cogent and tangibl .....

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ing 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 .....

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ng to other rules of Customs Valuation Rules, 1988, the Department is first required to show that the invoice price is not correct and genuine price. In Eicher Tractors Ltd Vs. Commissioner [2000(122) ELT 321(SC)], Apex Court has held that "the value, according to Section 14 of the Customs Act shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale, for delivery at ::he time and place of importation in the course of 7,Th international trade. It wa .....

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bindra Chandra Paul Vs. Commissioner [2007(209) ELT326(sc)] and South India Television (P) Ltd [2007(214) ELT (SC)), the Apex Court has held. that "transaction value can be rejected if the invoice price is not found to be correct, but it is for the Department to prove that the invoice price is incorrect". However I find that, in the instant case contract was entered into with the foreign supplier registered with the Customs authorities details are as under: was Details of contract ? * .....

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y the appellant is prima fade unacceptable as a representative of actual transaction value as during the same period other importers are importing from gulf area on similar basis have accepted assessable value in the range of US$ 325 to US$ 340 for the same product thereby implying that above value is accepted as transaction value by them". In the appeal filed before CESTAT, the Department submitted four Ells of Entry(as detailed at Para 8 above), viz. Nos. 525596 dated 03.09.2001, 433082 d .....

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nsignment 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 quant .....

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o. A/292/10/ CSTB/C-II dated 13.08.2010 in the appeal filed by the appellant against Order-in -Appeal No.67/2005 (JNCH) dated 08.06.2005, which in turn arises from the Assessment Order No. S/26- Misc-209/2001 Gr.IIB (JCH) dated 27.06.2001. In the impugned order the adjudicating authority states that valuation has been arrived at by applying Rule-5 of the Customs valuation Rules, 1988 which is applicable for identical goods. Therefore, the contention of the Department that Rule 8 Customs Valuatio .....

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9;s prices themselves cannot be made the basis for establishing the charge of undervaluation, in the absence of any doubt about the invoice price". This view of the Tribunal in case of Adani Exports Vs. CC, Vishakhapatnam [2000(116) ELT 715] was confirmed by the Hon'ble Supreme Court. 14. I find Hon'ble Supreme Court in the case of Varsha Plastics Pvt Ltd Vs. U.O.I [2009(235)ELT 193(SC)] has held that "burden is on the Department to establish case of mis-declaration of goods or .....

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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 .....

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