TMI Blog2018 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ing actual fact. It may be mentioned that scrap is always cheaper than the prime metal. Sale price on highseas could also be cheaper than the sale by the exporter. The charge of under-invoicing has to be supported by the evidence of prices of contemporaneous imports of similar/identical goods - determination of such price has to be in accordance with the relevant rules and subject to the provision of Section 14(1). It is made clear that these provisions are not mutually exclusive. Therefore Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 (1) speaks of deemed value. Appeal allowed. - C/00460/10, C/EH/93164/17 C/495/2010, C/00496/2010, C/00538 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts and also imposed penalties on the appellants. Being aggrieved, the appellants have filed the present appeals. Some of the co-noticees have not filed any appeals. 5. With this background, we have heard Shri C.K. Chaturvedi, learned Counsel for the appellants and Shri Chatur Singh and Ms. Vinitha Sekhar, learned Authorised Representatives on behalf of the department. 6. Learned Counsel for the appellants submits that there were four Bills of Entries against which the Zinc Scrap Saves were sold by Shri Dileep Dugar to M/s. Mittal Pigments Pvt. Ltd. It is the submission of the learned Counsel that payment was made through account payee cheque by the buyer and it was high sea sales. The actual transaction value was mentioned in the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they received commission depending on the order placed highlighting the role in imports. The learned A.R also submits that the necessary information was obtained from the First Secretary (Trade), Embassy of India, Brussels who had forwarded the report of Belgian Customs authorities in respect of supply of two consignments pertaining to zinc scrap Saves from M/s NFM Trading, Luxemburg on the basis of which the value was enhanced. Shri Sharad Agarwal on 19.11.2007 had stated that he used to get commission from the suppliers on quantity basis. In his statement it clearly comes out that invoice was less than the actual transaction value and that a differential amount of the value between the transacted value and the invoice value is to be remi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the trade transaction; their role is merely to bring buyer and seller together in the highseas sale for a commission. In the instant case, evidence was collected by the department that some amount over and above the invoice value was paid. Payment was made through account payee cheque. The statement given by Shri Niraj Sharma is also doubtful. The show-cause notice is based merely on suspicion without having actual fact. It may be mentioned that scrap is always cheaper than the prime metal. Sale price on highseas could also be cheaper than the sale by the exporter. 12. It may be mentioned that similarly Shri Ramesh Agarwal of M/s Mittal Pigments has retracted the statement on 9th July 2008. 13. It may be mentioned that the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of under-valuation. Once the department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-valuation has to be supported by evidence of prices of contemporaneous imports of like goods. In the instant case the department has not brought any corroborative evidence to support its contention. In the facts and circumstances of the case, we are of the view that the department had erred in rejecting the invoices submitted by the importer. Similar view was expressed by the Hon ble Supreme Court in the case of Eicher Tractors Ltd. v. CC - 2000 (122) ELT 321 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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