TMI Blog2019 (10) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Authorized Representative, do not address the crux of issue of rejection of transaction value - Without rejecting the transaction value, the application of any other rule, for re-determination of the value for the purpose of levy of Custom Duty is neither permissible nor admissible position in law as per the decision referred to by counsel for law. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 502 of 2012, 1086 of 2012, 1087 of 2012, 1088 of 2012, 1017 of 2012, 1018 of 2012, 1019 of 2012, 1020 of 2012, 1089 of 2012, 1090 of 2012, 1091 of 2012, 85724 of 2013, 85848 of 2013, 85864 of 2013 - A/86594-86607/2019 - Dated:- 13-9-2019 - Hon ble Mr. S.K. Mohanty, Member (Judicial) And Hon ble Mr. Sanjiv Srivastava, Member (Technical) Shri Prabhat Kumar, Advocate for the Appellant Shri Ramesh Kumar, Assistant Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA The Appeals as detailed in table below have been filed by the appellants against the orders as indicated in the table. Since all the appeals are in respect of same issue and investigations, they were heard simultaneously and are taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rietor/Director/ Authorized persons of the Companies accepted the fact about declaration of lower value than that of raw material cost. 2.4 On the basis of investigations made, the declared transaction value was rejected under the provisions of Rule 12 of Customs Valuation (Determination of Price of imported Goods) Rules, 2007 and re-determined under Rule 8 ibid. 2.5 The redetermined value based on the cost of raw material plus 30% manufacturing cost was accepted by the appellants. They also paid part of duty voluntarily. 2.6 Show Cause Notices as detailed in table below were issued to the importers and the concerned persons of the importing company. Importer SCN Date Details of Imports Period No of B/E Declared Value Redetermined Value ESSFO Impex Apr 11 July 08 3 US$ 1,67,040 US$ 3,06,464 ESSDEE Trading 12.04.11 Aug 08 1 US$ 53,352 US$ 1,15,201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chaudhary Ship Breakers[2010 (259) ELT 16 (SC)] Sanjivani Non Ferrous Trading Pvt Ltd. [2019 (365) ELT 3 (SC)] v. He relied upon the following decisions wherein it has been held that statements alone cannot be the basis for enhancement of value and other prepositions by application of which the value could not have been enhanced in the manner as has been done in the present proceedings. Orient Enterprises [1986 (23) ELT 507 (T)] Paper Suppliers [2002 (147) ELT 101 (TMum)] Metplast India [2004 (173) ELT 59 (T-Mum)] Galaxy Funworld Pvt Ltd [2007 (220) ELT 332 (T-Mum)] Munna Gift Centre [2004 (178) ELT 310 (TBang)] Sree Rajendra Mills Ltd {1997 (90) ELT 68 (T)] 3.2 Arguing for the revenue learned Authorized Representative submitted- i. Decision of tribunal referred to by the learned Counsel in case of S K Dhawan is distinguishable in as much as that department has not relied on the statements of the importers for determining the composition, but has gone by the declaration made by the importers in the import documents. ii. Since the value has been determined by the revenue on the basis of prevailing prices of raw material as per the LME Bullet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap of brass and zinc cannot be adopted for valuation and on the face of the fact that the percentage of raw materials in the final product is taken arbitrarily. It is his submission that the department did not produce or relied upon any contemporaneous import, while appellants had produced evidences of contemporaneous import but was ignored by the Commissioner and no findings are given. It is his further submission that the findings of misdeclaration of the value are nothing but presumptions and surmises. It is his further submission that an enquiry conducted by the department on the manufacturers in India is totally one sided and never informed to the appellant. It is his submission that the enquiries conducted with the manufacturers of such items is also vitiated as the goods imported were competing goods hence the reliance placed on such manufacturers views is of interested parties hence needs to be discarded as the adjudicating authority did not give cross-examination of such manufacturers. It is his further submission that the adjudicating authority has recorded a finding that the appellant-importers did not produce the invoice of manufacturers but produced invoices of a tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finally assessed. 6.1 The adjudicating authority has rejected the transaction value of the appellant-importer in the impugned orders by recording the finding that he disagree with the transaction value due to following reasons :- (a) That the prices of the brass/zinc valves were less than the LME price of valves and scrap of brass and zinc. (b) Statement recorded of Shri S.K. Dhawan indicated that the said valves had brass content 76% and iron content 24%, zinc content in zinc ball valves was 65% and iron content was 35%. 6.2 That undervaluation and misdeclaration has been admitted due to the fact that importers have not submitted the manufacturer invoices, catalogues from the trading house, supporting interrogation of the employees. 6.3 Opinion of the Jalandhar Central Excise Divisional Deputy Commissioner under whom many such units existed wherein it said that value addition is 30% on the raw materials. In his own statement the value of metal brass and zinc was much higher. 6.4 The transaction value was ridiculously low. 7. We find that the argument put forth by learned DR in support of the impugned orders and reasoning of the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice nor catalogue. In our view these findings of the adjudicating authority is totally not in consonance with the law, as these consignments were cleared by the same department when the bills of entries were filed and the documents as produced were accepted as correct at that time. If the authorities had entertained any doubt, they should have called for these documents at the time of clearance of the consignments. 7.4 Fourthly, we find that the adjudicating authority has recorded that the declared value were not actual transaction value paid or payable by the importer; are incorrect findings as they are not evidenced in any form; if the adjudicating authority has to come to such a conclusion in the impugned order there has to be a findings that the appellant-importer had paid additional amount to the exporters in some way or other with proper evidence. In the absence of any evidence it is not possible to accept the statement of learned DR that the transaction value and the declared value were not actual transaction value. 7.5 We also find strong force in the contention raised by the learned advocate for the appellant-importers that the decision of this Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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