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2019 (8) TMI 433

..... was passed on the basis of assertion that they were on contemporaneous imports of ₹ 148 per Kg. The order-in-original shows that there is no mention of name of importer or number of Bills of Entry on the basis of which said observation has been made. Without any specific evidence of contemporaneous imports the assertion of contemporaneous price is baseless. The order-in-original does not disclose the documents, the data, quantity, price etc. of the contemporaneous imports. Thus, the order-in-original was without any evidence. Appeal dismissed - decided against Revenue. - Customs Appeal No. 11787 of 2016 - A/11519/2019 - 8-8-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Shri Sameer Chitkara, Additional Comm .....

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..... le accepting the plea of the assessee, that they were not confronted with any contemporaneous material relied upon by the Revenue for enhancing the price declared by them in the bills of entry. It also noted the following remarks of the Tribunal: (Prabhu Dayal Prem Chand case, SCC OnLine CEGAT para 3) 3. ... In the present case as mentioned above, even though there is a reference to contemporaneous import in the order passed by the Deputy Commissioner no material regarding such import has been placed before us or made available by the appellant at any point of time. Therefore, assessment in this case has to be taken as having been made purely on the basis of LME Bulletin without any corroborative evidence of imports at or near that price wh .....

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..... rence of value. He argued that no evidence has been produced by the assessee. He relied on the Tribunal decision in the case of Anil Kumar Tiwari vs. CC, Tuticorin - 2016 (344) ELT 1051 (Tri. Chennai) wherein in Para 10, following has been observed :- 10. In the absence of any valid documents by the appellant it is evident that declared price of US $ 0.70 per mtr. is not a normal price and the same cannot be considered as transaction value. We find that adjudicating authority correctly determined the value under Rule 4(3) of CVR, 2007 and taken the lowest contemporaneous price of US $ 1.05 per mtr. instead of US $ 2.36/mtr. of contemporaneous import was available. Therefore, respectfully following the ratio of above two decisions, we find t .....

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..... ₹ 148 per Kg. The order-in-original shows that there is no mention of name of importer or number of Bills of Entry on the basis of which said observation has been made. It is seen that Hon'ble Apex Court in the case of Sanjivani Non-Ferrous Trading Pvt. Limited (supra) affirmed the decision of the Tribunal. In the said case, it observed as follows:- 14. In Commissioner of Customs vs. Prabhu Dayal Prem Chand, this Court was confronted with almost same kind of fact situation. On the basis of the information received subsequently from the London Metal Exchange (for short LME ) to the effect that the price of the two metals viz, brass scrap and copper scrap, in LME as on the date of import was more than the price declared by the resp .....

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..... judication order or such material was placed before the Tribunal at the time of hearing of the appeal. The learned counsel for the Revenue has not been able to controvert the said observations by the Tribunal. In that view of the matter no fault can be found with the order passed by the Tribunal setting aside the additional demand created against the assessee. 7. Thus, without any specific evidence of contemporaneous imports the assertion of contemporaneous price is baseless. The order-in-original does not disclose the documents, the data, quantity, price etc. of the contemporaneous imports. In these circumstances, following the decision of Hon'ble Apex Court, we hold that order-in-original was without any evidence. The Commissioner (Ap .....

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