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2020 (2) TMI 640

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..... counsel for law. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 85446 of 2013 - A/87044/2019 - Dated:- 23-9-2019 - Hon ble Dr. D.M. Misra, Member (Judicial) And Hon ble Mr. Sanjiv Srivastava, Member (Technical) Shri Arthur Prem, Consultant, for the Appellant Shri Manoj Kumar, Assistant Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal has been filed by the appellant against the order in original No 111/2012 dated 29.10.2012 of the Commissioner Customs (Import), Nhava Sheva. By the impugned order, the Commissioner held as follows: 7.1 On The basis of the foregoing, I pass the following orders: 7.1.1. I reject the declared assessable value, of US$ 1,61,380.00 pertaining to the impugned goods, under rule 12(1) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and re-determine the same at US$ 6,26,771.80 (i.e. ₹ 2,61,49,646.89) in terms of rule 3 and 8 ibid r/w section 14 of the Customs Act, 1962. 7.1.2. I hold the impugned imported goods collectively valued at US$ 6,26,771.80 (i.e. ₹ 2,61,49,646.89) (redetermined assessable value) liable to confiscation under section 111(m .....

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..... e, 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 Notice was issued to the importers and the concerned persons of the importing company asking them to show cause as to why- 19.1 Extended period under proviso to Section 28(1) (b) of the Customs Act, 1962, should not be invoked. 19.2 The declared assessable value of $ 161380 USD of the goods covered under the above mentioned Bills of Entry, should not be rejected under Rule 12(1) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and re-determined at $ 626771.8 USD in terms Rule 3 ibid read with Section 14 of the said Act, on the basis of the LME price of Zinc for the relevant period of import and value addition of 30% thereon in terms of Rule 8 of the Rules ibid. 19.3 The amount of Customs duty ₹ 59,72,165/- (Rupees fifty nine Lacs seventy two thousands one hundred sixty five only), as .....

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..... In the cases decided by the tribunal earlier same evidences were relied upon by the revenue for rejecting the transaction value and for redetermining the value of imported goods. However tribunal has set aside the demands made along with interest and penalties. iii. Since the issues involved in those appeals and the case under consideration are exactly identical, judicial propriety demand that this bench of tribunal should the said order of tribunal be followed for deciding this appeal. 3.2 Arguing for the revenue learned Authorized Representative submitted6 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 Bulletin etc, and the value adopted confirms to the Rule 8 of Valuation Rules (Price of Imported Goods) Rules, 2007. Hence the value so determined has to be adopted for determination of the value for determination of duty p .....

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..... itrarily. 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 trading house with intent to suppress the value. He would submit that when the goods were cleared on importation, all the documents were produced and after .....

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..... ee 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 orders for confirmation of differential duty are flawed for more than one reason. 7.1 Firstly, we find that the methodology adopted by the adjudicating authority for redetermination of the value of the imported consi .....

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..... ents 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 the case of Radhey Shyam and Ajay Exports & Ors. (supra) are on similar set of facts wherein this Bench has recorded that contemporaneous import details if produced by the appellant-importer, refusing to look to such evidence is incorrect .....

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