TMI Blog2019 (8) TMI 1676X X X X Extracts X X X X X X X X Extracts X X X X ..... taken additional evidence from the respondent contrary to the provisions of Rule 5 of the Customs Appeal Rules, 1982. However, the Commissioner (Appeals) has not taken any new evidence but only entertained some new case laws in support of their case, which cannot be considered as production of additional evidence on part of the respondent. The right to appeal is a statutory right under Section 128 of the Customs Act, 1962 and cannot be curtailed by relying on the case of M/S. ADVANCED SCAN SUPPORT TECHNOLOGIES VERSUS C.C., JODHPUR [ 2015 (11) TMI 31 - CESTAT NEW DELHI] in the case wherein there was no contest by the appellant. It is settled law that the that the value cannot be enhanced on the basis of NIDB price alone which has rightly been relied upon by the learned Commissioner (Appeals). The Department has not produced any evidence of contemporaneous import but for relying on the NIDB price. NIDB price itself cannot be sufficient to reject the transaction value. But the Department was required to give the evidence of higher contemporaneous value based on the cogent evidence by supply of comparable invoice in terms of the Customs Valuation Rules which has obviously been not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able for comparison. We agree to enhance to your proposed value as goods are incurring port rent demurrage and blocking of capital. After release of goods please issue assessment order under Sec. 17(5) of CH 62. 3. The respondent had submitted to the appraising group about the price declared being the bona fide and for which the payment has been made as per the invoice. However, the respondent importer agreed to proposed value in order to avoid delay and detention of the cargo and asked for the release of the goods, with a request to issue the assessment order under Section 17(5) of Customs Act, 1962 (hereinafter referred to as the Customs Act ). The assessing group assessed the Bill of Entry and issued adjudication order in terms of Section 17(5) of Customs Act which was appealed against before the Commissioner (Appeals). The Commissioner (Appeals) after considering the submissions made by the Revenue and respondent importer set aside the order and allowed the relief to the respondent importer. 4. Being aggrieved, the Revenue has filed the appeal on the following grounds: (i) That the issue pertained to enhancement of value after rejecting the declared valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the various judgements, however, the same is not relevant to the fact of the case on the ground that the respondent has failed to supply the manufacturer s invoice and also at the relevant time the Customs Valuation Rule was not in vogue. The importer was also shown the evidence of NIDB price which indicated the contemporaneous price of the imported goods. (v) The Commissioner (Appeals) has also not considered the case of M/s Shibani Engineering Systems 1996 (86) ELT 453 (SC), wherein the Hon ble Supreme Court clearly spelt out that where the transaction value is low and unrealistic of the goods imported from a trader and when a price list of a manufacturer is not produced the goods can be assessed on the basis of the contemporaneous import price. The order of Commissioner (Appeals) is thus not sustainable and liable to be set aside. (vi) That the re-determination of value cannot be questioned when the importer has accepted the same placing reliance on the decision of this Tribunal in the case of Vikas Spinners Vs. CC, Lucknow 2001 (128) ELT 143 (Tri.-Del.), (vii) That the Commissioner (Appeals) has not followed the decision in the case of Guardian Plasticote L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es they were forced to accept the decision taken by the authorities. Since the goods were under detention, therefore, acceptance of value as per Revenue does not debar the appellants to challenge the same. In the case of Primella Sanitary Products Pvt. Ltd. (supra) the assessee made the concession before the Tribunal as well as before the Commissioner (Appeals). The Hon ble Supreme Court held that when concession is made, manufacturer is bound and concession cannot be withdrawn. In the case of Akash International the Revenue shown the value of the same goods or similar goods import at other Customs House at higher value and in view of this evidence the importer accepted the enhanced value of the goods. The facts in the present case are different. In the present case year of manufacture is not available on the goods. Therefore, comparison of goods with the goods imported at other ports at higher value is not sustainable. In these circumstances impugned order regarding enhancement of value is not sustainable. Hence, set aside. 7. As we have set aside the enhancement of value redemption fine is reduced to ₹ 1,50,000/- from ₹ 3 lakhs and penalty is reduced to ₹ 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to quality, quantity and country of origin with the imports under consideration. It has been held in a number of decisions that NIDB data cannot be made the basis for enhancement of value. Commissioner (Appeals) has relied upon various decisions of the Tribunal for holding that any enhancement in assessment value, the transaction value has to be first rejected based on legal permissible ground as indicated in the Valuation Rules. He has also referred to Hon ble Supreme Court decision in the case of Eicher Tractors Ltd. v. CC - 2000 (122) E.L.T. 321 (S.C.) in support of his finding that transaction value cannot be rejected without clear and cogent evidence produced by the department with regard to quality, import of origin and place and time of import. 6 . We find that in their memo of appeal, Revenue has not advanced any such evidences to support their case. Inasmuch as, no evidence for rejection of transaction value stands produced by the authority, we find no reason to interfere with the impugned order of Commissioner (Appeals). Revenue s appeal is accordingly rejected. Moreover, in the instant appeal, the reliance is heavily placed on the values mentioned in NID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 (144) ELT 619 (Tri.-Kolkata), Hon ble CEGAT held as under in para 5: 5 . After carefully considering the submissions made from both the sides, we agree with the ld. Consultant that the documents in the shape of Bill of Entry relied upon by the adjudicating authority cannot be held to be a representation of contemporaneous imports . A comparison of the said documents with the appellants invoice and the other documents, show that apart from being different in quantity and quality of the goods, the purchase in the relied upon documents is from the dealer whereas the appellants have directly purchased from the manufacturer. The Revenue has not produced any evidence to rebut the appellants stand that the goods were of stock lot. The sale confirmation by the supplier of the goods clearly described the goods as stock lot and the invoices raised by them also described the same as stock lot goods. As such, merely because the goods under assessment and the relied upon documents, show that the same to be of China origin, does not ipso facto lead to the conclusion that they are comparable. Inasmuch as there is no other evidence on record to deny the genuineness of the manufacturers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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