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2019 (8) TMI 224

..... report was not provided by him and that the Commissioner has not proceeded sequentially in terms of Customs Valuation Rules - HELD THAT:- The Commissioner has heavily relied on the market enquiry which was not done in the presence of the either the Appellants or their representative. The copy of the market enquiry report was not given to the Appellants. We find that for this reasons the Order in Original suffers from a serious lacuna. The Appellants contended that the Learned Commissioner has not discharged the burden of proof of valuation - We find that Commissioner has brushed aside the contemporaneous value of some items provided by the Appellants. The Commissioner’s contention was that such goods were seized and were subjected to adjudication and therefore he was not considering those values. We find that the Learned Commissioner has not analysed the values therein taken in such adjudication of identical / similar goods. We find that for that reasons also the adjudication order suffers from infirmity. The Ld. Commissioner could have gone in to the valuation of contemporaneous imports from NIDB or any other source or she could have examined the values arrived at in such bi .....

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..... f market survey in respect of Stop Leak (Brand Abro), Putty (Brand Abro) and Shellac (Brand Versachen); the value of Stop Leak (Brand Morse) was arrived on the basis of export value of a local manufacturer and the value of G.P. Paste (Brand Chemico) was arrived at on the basis of Proforma Invoice issued to M/s. Ashu Automarts by the foreign supplier. He submits that the market inquiry were conducted behind the back of the Appellant; export price should not be relied upon for valuing a import consignment and that no Bill of Entry details were provided to actually show that goods have been imported by M/s. Ashu Automarts and the letters sent by the Appellants to M/s. Ashu Automarts were returned with remarks that no such company exists at the said address. The Adjudicating Authority has rejected the value on presumption only and revenue did not put forth any evidence to reject the transaction value. The impugned goods were partially damaged. However, the Adjudicating Authority did not consider the report of M/s. SGS, and independent agency that 40% of the goods were in damaged condition. Though the Appellants relied upon import of similar / identical goods by M/s. Auto Stores, which .....

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..... India Ltd 1985 (21)ELT 510 (Tri) (vii). Multimetal Ltd 2002 (144) ELT 574 (Tri-Mum) (viii). Pan Asia Enterprises 1995 (79) ELT 322(Tri) 5. We find that Learned Commissioner has found that the value of 5 of the 7 items imported was mis-declared and required redetermination. Learned Commissioner has relied upon the market enquiry in respect of 3 items; in respect of 1 item he relied upon the export price of a product manufactured in India and in one case he relied upon a Proforma Invoice given by the foreign supplier to M/s. Ashu Automarts. The Appellants submits that the Learned Commissioner did not accept the values of contemporaneous import submitted by them; he also did not accept the prices of the item for which they have produced invoices. Learned Commissioner has given various reasons for not accepting the same. The crux of the findings of the Commissioner was that in those cases the department confiscated the goods and the same had gone through adjudicating proceedings; the authenticity of the bills produced by the Appellants is suspect etc. 6. However, the main contentions of the Appellants are that the Appellant was not party to the market enquiry; copy of the report was n .....

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..... ed and were subjected to adjudication and therefore he was not considering those values. We find that the Learned Commissioner has not analysed the values therein taken in such adjudication of identical / similar goods. We find that for that reasons also the adjudication order suffers from infirmity. The Commissioner, having rejected the transaction value, ought to have proceeded sequentially through the Rules 5, 6 and 7 etc, before resorting to Rule 7A. We also find that no such reasoning has been given as to why the Commissioner required to take the help of Rule 7A. Learned Commissioner has also not cross examined the officers who conducted market survey or the personal of SGS who examined the impugned goods and certified that a portion of the cargo is damaged. We find that Ld. Commissioner could have gone in to the valuation of contemporaneous imports from NIDB or any other source or she could have examined the values arrived at in such bills of entry provided by the appellants. This was all the more important as the imports were at about the same time and were of similar products. We find that Tribunal in the case of Ramdev Traders 2018 (359) E.L.T. 431 (Tri. - Chennai) observe .....

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..... corroborated by independent evidences which could be contemporary imports or manufacturer s price list, which again needs support by the specific written declaration from manufacturer. Further, when it is a case of enhancement of value, Revenue needs to make an investigation on the differential payments made by the importer to the supplier from where the goods are received. The impugned order also discards the details of bill of entry dated 20-7-2011 produced by the importer indicating the clearance value of the pocket scale @ ₹ 68 per pc, and in the case of present imports, the price declared is ₹ 71 per pc. The rejection in the impugned order of the said evidence is more in the nature of arbitrary, when revenue has not come out with any other cogent evidence (other than market enquiry) to sustain the enhancement of the value for these goods. Therefore, following Hon ble Supreme Court decision in case of M/s. Eicher Tractors (supra) and CESTAT decision in case of M/s. Sara Electro Acoustics Pvt. Ltd. (supra) enhancement of value here is not sustainable. 9. We find also that the commissioner s reliance on export price of a product i.e. Stop Leak for determining the val .....

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