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2018 (12) TMI 447

se of M/S. SRR INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, MUNDRA [2018 (12) TMI 392 - CESTAT AHMEDABAD], where it was held that The assessable value of the goods i.e. PU Belts is enhanced by the customs authorities mainly on the basis of DGOV Circular, which is not an authority to dispute the valuation of the imported goods. It was also held that the NIDB data is also of no basis and relevant to the present case. - The enhancement of the value of imported goods and consequential differential duty demand is not legal and correct - appeal allowed - decided in favor of appellant. - Appeal No. C/11804,12543/2018 -DB - A/12719-12720/2018 - 7-12-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri N.D. George, Advocate for the Appellant Shri S.N. Gohil, Superintendent (AR) for the Respondent ORDER Per: Ramesh Nair The common facts in both the appeals are that the appellants are engaged in the import and trading of ordinary belts (PU Belts). The case of the department is that the appellant undervalued the said imported goods. The details such as B/E, The value, quantity, value declared, value enhanced and differential duty etc. is given below :- Liberty .....

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nt (AR) appearing on behalf of the Revenue reiterated the findings of the impugned orders. 4. We have carefully considered the submissions made by both the sides and perused the record. We find that Appeal No. C/12341/2018-DB has been disposed of vide order No. A/12702/2018 dated 04.12.2018. On perusal of the appeal papers, we find that the goods in all the three appeals i.e. M/s. SRR International, M/s. Liberty Enterprises and M/s. Sumit Enterprises are identical. The facts such as, reliance on contemporaneous imports, market survey, DGOV Circular, identical products were relied upon in all the three cases. It is also observed that the price of the goods declared by all the three parties are more or less same even though minor variation is there. Supplier in all the three cases is also the same party i.e. M/s. Wenzhou Yuanqiao Leather Goods Company Limited, China. We have dealt with identical issue in the case of SRR International and allowed the appeal of the said party vide order dated 04.12.2018 which is reproduced below:- 4. We have carefully gone through the submissions made by both sides and perused the record. We find that the assessable value of the goods i.e. PU Belts is .....

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supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word value is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14(1). The value to be declared in the Bill of Entry is the value referred to above and not merely the invoice price. On a plain reading of Section 14(1) and Section 14(1A), it envisages that the value of any goods chargeable to ad valorem duty has to be deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). It is made clear that Section 14(1) and Section 14(1A) are not mutually exclusive. Therefore, the transaction value under 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 is the deeming provision. It talks of deemed value. The value is deemed to be the price at which such goods are ordinarily sold or offered for sale, for delivery at the time and place of import .....

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nce of prices of contemporaneous imports of like goods. Section 14(1) speaks of deemed value . Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. 7. Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s. Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted by the Department. Further, in the present case, the Department has relied upon export .....

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e for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out in Rule 4(2). In the said judgment, it has been further held that, the word payable in Rule 4(1) also refers to the transaction value and payability in respect of the transaction envisaged a situation where payment of price stood deferred. Therefore, this decision of the Supreme Court directs the Revenue to decide the validity of the particular value instead of rejecting the transaction value. We wish, however, to clarify that it is still open to the Department based on evidence, to show that the declared price is not the price at which like goods are sold or offered for sale ordinarily, which words occur in Section 14(1). Lastly, it is important to note that in the above decision of this Court in Eicher Tractors (supra) this Court has held that the Department has to proceed sequentially under Rules 5, 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with Rules 5, 6 and 7 even in cases where the transaction value is to be rejected under Rule 4. In the present c .....

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sessable value without adhering to the principles of natural justice cannot be sustained. The vague assertion that market enquiries have been made without indicating the details of the same and fixing the duty liability on the importer on the basis of the same cannot be accepted. In view of the above observations we allow the appeal with consequential relief. The above decision of the Tribunal was upheld by the Hon'ble Apex Court by dismissing the Civil Appeal filed by Commissioner of Customs, Chennai in the case of Topsia Estates Pvt. Limited vs. CC (Import-Seaport), Chennai the Tribunal held that merely on the basis of NIDB data, the declared value cannot be enhanced. As regards the DGOV Circular, on the similar and standing order, issued by a Commissionerate, this Tribunal in the case of Om Drishian International Limited vs. CCE, New Delhi (supra) passed the following order:- 3. The dispute in the present appeal relates to the assessable value of the ball bearings. The lower authorities enhanced the value of the bearings based upon the Circular No. S/26-Misc.-2195/2005 VA, dated 24-9-2008 issued by the Commissioner of Customs (Import), Jawaharlal Nehru Customs House, Nhava S .....

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