TMI Blog2019 (3) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case at hand duty has been demanded under Rule 4(1) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 as indicates that Department is adopting two different methodologies of valuation in the same proceedings emanating from same search and demand for the previous period - in relation to same proceedings, two different methods have been adopted and if in the decision cited supra in relation to seized goods, residual method has been adopted and upheld, then the same cannot have any precedent value for the proceedings in this case as Valuation Method on the basis of which Department proceeds in the instant impugned Show Cause Notice is different being based on Rule 4 of identical goods. Since branding, grading on the basis of quality and packing are processes which are carried out in India, even as per the Show Cause Notice, therefore, the goods as were cleared by the Customs after proper assessment in normal packing cannot be termed to be the same as were being sold by them or imported by them in vacuum packing, after branding and grading. We accordingly held that in the absence of corroboration and cogent evidence, the Department s case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n intelligence, investigations were undertaken by the Customs department into the import made by the appellant. The appellant had imported semi precious stones (Cubic Zirconia) as well as packing materials bearing the brand names such as Korean Star , Starline , Decent and Swiss Star . The semi precious stones were of the various sizes 1.0 mm to 3.0 mm which were imported from Hong Kong through Air Cargo Complex. As indicated earlier, the packing material through foreign post office, Jaipur. During the investigation, searches were made at the various places including the residential premises belonging to the appellant and the factory premises. During the search, it revealed that the appellants were also having another firm engaged in the same type of activities by name and style of M/s Suhani Gems from the same premises in which Shri Sunil Batwara and his wife Smt. Meenakshi Batwara were partners. The appellant firm is proprietorship concern of Shri Sunil Batwara, the proprietor of M/s Sun Gems (appellant). During the search, it was found not feasible to segregate the goods and documents on the day of search and, therefore, the Customs officer resumed the Hard Disk Drive of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is not sustainable on account of the fact as under: (i) That the statement of Shri Sunil Batwara, the proprietor of the appellant was recorded on the date of search itself i.e. on 19.12.2012 and subsequently on 27.3.2013 three other occasions. (ii) Statements were obtained by the department as per their requirement in typed form and Shri Batwara has not tendered the same as for his own. (iii) Shri Sunil Batwara, proprietor of the appellant company accepted that Cubic Zirconia in loose packing as well as vacuum packing are being imported by the appellant along with the packing materials but, separately because of uniqueness of their firm and product in the local market to avoid any duplication of their product; that they are purchasing the stock lot from the foreign supplier, which happened to be his brother s firm also sorting is being done in India. (iv) Shri Sunil Batwara could not produce the packing slip for the previous imports as the same were not available, that the vacuum packed Cubic Zirconia is commanding higher price in the market then it will packed Zirconia as thereof superior quality. 4.1 The ld. Advocate further submits that the sustained portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny and the same was never disputed by their proprietor. The various statements which were tendered under Section 108 of Customs Act were never ever retracted. 8. As that case Rule 9(1) i.e. residual method was applied as the Department was of the opinion of that determination of value under Rule 6 could not as per Rule 3, 4 and 5 and therefore residual method was applied. In so doing Department as per Para 8 of the Order Department constituted a Valuation Committee of Experts i.e. Shri Sachin Gupta of M/s Govind Gems, Jaipur, Shri Mahesh Khandelwal of M/s R. K. Impex, Jaipur and Shri D. K. Bangar, Assistant Commissioner (Aduit) Customs, Jaipur to determine the correct value of sizes 1.0 mm to 3.0 mm imported by two firms of Shri Batwara. This Tribunal upheld the valuation methodology. However, in the case at hand duty has been demanded under Rule 4(1) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 as indicates that Department is adopting two different methodologies of valuation in the same proceedings emanating from same search and demand for the previous period. The impugned order relating to seizure by the Department has clearly been acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acking and in vacuum pouches of the same consignment may be of same goods and quality and prices of these may be approximately the same . Shri Batwara in his statement used words may be . Thus he has expressed only possibility that the Cubic Zirconia packed in normal packing and in vacuum packing pouches of the same consignment may be of the same grade and quality and the prices of these may be approximately the same . This, it appeared that he never accepted the under valuation in a categorical manner. 11. We also the statement dated 27.08.2013 at running page 226 of the Appeal Memo wherein Shri Sunil Batwara stated that : I do agree that the Cubic Zirconia packed in the pouch packing by us were branded, graded and of superior quality than the Cubic Zirconia packed in normal packing. 12. We are in agreement with the argument of learned Advocate that since branding, grading on the basis of quality and packing are processes which are carried out in India, even as per the Show Cause Notice, therefore, the goods as were cleared by the Customs after proper assessment in normal packing cannot be termed to be the same as were being sold by them or imported by them ..... 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