TMI Blog2020 (6) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... ONER OF CUSTOMS, CALCUTTA VERSUS SOUTH INDIA TELEVISION (P) LTD. [ 2007 (7) TMI 9 - SUPREME COURT] . The allegation of undervaluation cannot be sustained - Appeal allowed - decided in favor of appellant. - Customs Appeal No. 52328 of 2019 - FINAL ORDER NO. 50695/2020 - Dated:- 12-6-2020 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) HON BLE MR. C. L. MAHAR, MEMBER (TECHNICAL) APPEARANCE: Shri Aakarsh Srivastava Shri Ashish Bansal, Advocates for the appellant. Shri Rakesh Kumar, Authorised Representative for the respondent ANIL CHOUDAHRY: The issue in this appeal relates to rejection of declared value for import of Synthetic Rubber PBR Non Oil Off Grade Loose Lumps in Super Sacks Packing and consequential order of confiscation along with penalty. 2. The appellant is a regular importer and engaged in trading of Synthetic Rubber PBR Non Oil Grade Loose Lumps in Super Sacks classifiable under Customs Tariff Heading 40021990 and also PVC Resin Powder Off Grade Suspension R 65/67 in super sacks classifiable under CTH 39042210. 3. The brief facts are that on the basis of intelligence, the Department examined the goods under import vide Bills of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The samples drawn during the investigation were sent to the Central Institute of Plastics Engineering and Technology (CIPET), Murthal, Haryana, to check the nature, composition, density, ash contents and grade of the imported goods. The test report dated 08.10.2015 received from CIPET, Murthal, revealed that on the basis of the Filter Content, Moisture Content and identification of goods, the imported goods were of goods quality. 8. During the investigation, the impugned goods appeared to have been mis-declared on the basis of test report received from CIPET. Further, the impugned goods also appeared to have been under-valued on the basis of data available for the contemporaneous imports (NIDB data). Therefore, the detention of the goods was converted into seizure on 21.09.2015 under Section 110 of the Customs Act, 1962. 9. A Show Cause Notice was issued to the Appellant vide C. No. VIII(SB)10/Cus. Prev./A1pha/182/2015 dated 04.02.2016. The Show Cause Notice dated 04.02.2016 was adjudicated vide the impugned Order-inOriginal dated 10.04.2017, wherein the adjudicating Authority ordered, inter alia, as under: 9.1 The declared values of ₹ 54,79,364/- and ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id goods should be calculated in the range of 75-80% to the value of prime grade and arrived at ₹ 77.99/- per kg. 10.3 That the declared price for the synthetic Rubber BMB non oil off grade loose lumps in super sacks imported vide Bill of Entry No. 2116454 dated 03.08.2015 was ₹ 26.80 per kg., however, the previous imports made by the Appellant of the same product was ₹ 50.86/- per Kg. imported earlier vide Bill of Entry No. 9319794 dated 22.05.2015 and Bill of Entry No. 9592872 dated 16.06.2015. 11. Being aggrieved, the appellant filed appeal before the Learned Commissioner (Appeals), who vide the impugned order, was pleased to reject the appeal. 12. Being aggrieved, the appellant is before this Tribunal. 13. The Learned Counsel urges that the Commissioner (Appeals) have rejected the appeal in a mechanical manner and failed to appreciate the statement of Director of the appellant, who has not admitted the allegation of mis-declaration or undervaluation. Since, the statement of Director Shri Brij Bhushan Gupta is part of RUDs in the SCN, due credence and weightage ought to be given to it. It is further urged that the Department have failed to make out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enhanced value has been provided to the appellant, resulting in gross violation of the principle of Natural Justice. 13.4 Further, it is urged that the court below have gravely mis-interpreted the Test Report of Central Institute of Plastic Engineering and Technology, Murthal, Haryana. The said report nowhere states that the goods are not as declared as in the Bill of Entry or that they are not PVC Resin Powder Off Grade Suspension R 65/67 . The lab report has simply given an opinion on composition of the goods. Further, no evidence has been adduced by the court below to arrive at the price suggested by it for PBC Resin Powder Off Grade Suspension R 65/67. 13.5 It is further urged that the court below erred in re-assessing the value of Synthetic Rubber BMB Non Oil Off Grade Loose Lumps, on the basis of previous imports made by the appellant, by relying on the assessed value whereas the declared value in those Bill of Entry is the same as declared value in the present bills of entry. It is relevant to mention that the goods imported vide earlier Bill of Entry No. 9319794 dated 22.05.2015 and the Bill of Entry No. 9592872 dated 16.05.2015, which have been relied upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 (272) E.L.T. 641 (S.C.) 15. Having considered the rival contentions we find that the case of undervaluation has been made by the Department on two of the three types of goods imported by the appellant vide the Bills of Entry in dispute, namely:- a. Synthetic Rubber PBR Non Oil off Grade Loose Lumps in Super Sacks b. Synthetic Rubber PBR BMB Non Oil off Grade Loose Lumps in Super Sacks a. For Synthetic Rubber PBR Non Oil off Grade Loose Lumps in Super Sacks The appellant declared it at ₹ 45.40 per kg, however the Ld Adjudicating Authority referred to the price of contemporaneous imports (NIDB data) which was ₹ 103.99 per kg and thereafter in the name of a just and fair approach, re-determined it at 75% of the NIDB data, which comes to ₹ 77.99 per Kg. We find force in the contention of Ld Counsel for the appellant that the NIDB data cannot be relied upon by the Department, as it is for different quantity and quality of goods, since it is for 45,236 kg of Synthetic Rubber PBR (CTH40022000), whereas the appellant goods are 76,567 kg of Synthetic Rubber PBR Non Oil off grade loose lumps (CTH 40021990). We also find force in their contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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