TMI Blog2018 (2) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. - C/30995-31008/2016 - A/30143-30156/2018 - Dated:- 29-1-2018 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member(Technical) Shri R. Muralidhar, Advocate - for the Appellant. Shri Madhusudan Reddy, Dy. Commissioner/AR - for the Respondent. [Order Per: Madhu Mohan Damodhar] 1. All these appeals since involving identical issue, are taken up for common disposal. In the first set of appeals filed by M/s Agarwal Foundries Pvt. Ltd., appellants had filed bills of entry for clearance of MS Steel (turning shredded scrap) other than stainless steel scrap, the goods were exempted under first check. It was noticed that appellants had not submitted manufacturers' invoice but that of traders. The declared invoice value of the imported goods ranged from USD 245 to 281/Euro 219 to 235. Customs authorities took the view that declared values not being based on manufacturer's invoices, hence declared values are required to be enhanced to USD 430 per tonne (or Euro 401/378/385 etc.) based on contemporary prices in NIDB data. Adjudication orders on those lines issued by original authority were appealed by the appellants. However, the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CUS-OOO-APP-077 9251730 9366257 16.05.15 27.05.15 245 Euro 235 430 Euro 385 9 C/31003/2016 HYD-CUS-OOO-APP-079 9873088 13.07.15 250 430 10 C/31004/2016 HYD-CUS- OOO-APP-081 3132179 180 351.68 2. On similar facts, where declared invoice prices of MS turning shredded scrap have been enhanced by adjudicating authority and upheld by the Commissioner (Appeals), Agarwal Foundries (hereinafter referred to AF) have also filed four appeals. Appeal wise details of O-I-A, Bills of Entry, declared invoice values and enhanced values as submitted by appellants (AF), are as under: S.No. Appeal No. Impugned OIA No. Bill of Entry Date Invoice value in USD per MT Enhanced value (USD) adopted by Customs 1 C/31005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been adduced by him. vi) There is no material to the evidence from the Department that the transaction value entered into is not the correct value which stands paid to the overseas exporter. The Department has not come out with any evidence to the effect that the overseas exporter has been paid by higher consideration other than the amount of invoice paid through importer's bank. vii) While NIDB data can be a guideline for the Customs to arrive at the value of the goods, the NIDB data cannot be applied directly, unless the value given therein falls under the parameters of 'identical goods' or 'similar goods'. The data provided by NIDB has also not been made available to the appellant. viii) It can be seen that the rate adopted by the Department for MS scrap even more than the prevailing rates for the finished goods, i.e. Billets. Hence, if the value adopted on the Department is taken as correct, then after adding the Customs Duty and other conversion costs, their finished goods, i.e. billets would be much higher than the price prevailing for the finished goods. 4. Ld. Counsel relied on the following case laws: i) Topsia Estates Pvt. Ltd V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, it is not as if the manufacturers concerned have set out or conduct their activities with the sole intention of manufacturing such shredded scrap . Obviously the impugned goods are but shreds and turnings which have emerge during the manufacture of goods by the concerned manufacture. There can be no dispute that these metal shreds and turnings would not be in very huge quantities vis-a-vis the actual goods manufactured. It also appears to reason that the manufacturers would prefer to dispose of such shredded scrap to the traders instead of expending time and energy selling them directly worldwide. 6.5) Viewed in this light, the invoices issued by the traders from countries like Belgium, Malaysia, Singapore etc. cannot be dismissed peremptorily unless there are justifiable reasons not to accept the genuineness or authenticity of such invoices. In any case, the declared values can be rejected only in terms of statutory provisions and rules governing valuation of imported goods. 6.6) Be it as it may, in all these cases, enhanced values have been adopted based on NIDB data only. The appellants have contended that the contemporary values on which the department inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion order that the adjudicating authority observed that the unit price declared appears to be very low compared to the contemporaneous import value available in NIDB data. The appellant imported PU Coated Fabrics of various thickness and different qualities from China. It is seen from the Table as reproduced in the adjudication order that the declared unit price varies from 0.90 MT to 1.60 MT and the value was enhanced from 1.24 per MT to 2.04 per MT. We have also noticed that the appellant imported the same goods from Kolkata Port also. The appellant in the written submission before the Commissioner (Appeals) submitted copies of the various orders passed by the Commissioner (Appeals) under which it was accepted. There is no evidence of higher value of contemporaneous import from same sources. There is no allegation of mis-declaration of the goods. 6.9) In a recent decision, in Sarda Energy and Minerals Ltd. Vs. CCE, Raipur [2018(359) E.L.T. 262 (Tri.-Del.)], the above ratio was once again reiterated by Tribunal as follows: In this connection, we have perused the provisions of Rule 12, which enables the rejection of declared assessable value. The said rules provide f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity, size, quantity, etc., and it is contended by the appellant before the lower appellate authority that the declared value of the same goods were accepted by the 6 Customs Appeals Nos.50503-50504/2017 and 50519-50520/2017 Department at Kolkata Port. We also find force in the submission of the learned Advocate that in this particular situation, Rule 9 of the Valuation Rules would not be invoked. 8. In view of the discussions and analysis, we find that the impugned orders cannot be legally sustained. Accordingly, the same are set aside. The appeals are allowed with consequential relief. 6.10) We find that the above decisions will apply on all fours to the present appeals before us. We also find merit in the appellant's contention that Department has not brought out any other material to demolish the transaction value and has also not brought any evidence to prove that the overseas supplier has been paid consideration higher than the amount indicated in the invoices which have been paid through bank channels. 7) In the event, we hold that all the impugned orders relating to these 14 appeals cannot sustain and will have to be set aside which we hereby do. Appeals a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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