TMI Blog2022 (12) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority was not right in rejecting the cross-examination of the chemical examiner. In the present matter, refusal to allow cross-examination of the Chemical Examiner is to be viewed as a serious violation of principles of natural justice. Had the cross examination been allowed, the appellant could have availed an opportunity to enquire the testing methodology and standards adopted by CRCL and its suitability vis-a-vis the ISI. As regard quality of the imported goods in question, we find that there is clear understanding between the supplier and the appellant importer that the goods in question has more moisture content and therefore the quality of goods is inferior to the prime material and on that basis the supplier agreed to sell the goods at lower price. As against this fact, the revenue could not adduce any evidence to reject this fact. Therefore the claim of the appellant that the goods in question is off grade is legitimate and convincing. Recovery of dues in view of CIRP proceedings under IBC - HELD THAT:- For the reason of aforesaid NCLT order in the appellant case and the above cited Apex Court judgments, the dues of the Government, including the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, as also to confiscate the goods under Section 111(d) and (m) of the Customs Act for misdeclaration of description and value and to impose penalty on them under Section 112(a) and 114A of the Act. After due process of law, the show cause notice was adjudicated vide Order-In-Original dtd. 21.10.2011, wherein it was held that the goods were of Suspension grade PVC Resin of Prime Grade and the value of the goods was re-determined at 1,55,22,713/- under Section 14 of the Customs Act, 1962 read with Rule 9 and Rule 4 of the Customs Valuation (Determination of Prince of the imported Goods), Rules, 2007; the goods was confiscated under Section 111(d) and (m) of the Act with option for redemption against payment of fine of Rs. 20 lakhs under Section 125 ; a differential customs duty of Rs. 14,71,167/- was ordered to be paid by the importer; a penalty of Rs. 14,71,167 was imposed on the importer under section 114A of the Act ; and penalty of Rs. 2,00,000/- was imposed on Shri J.P. Saboo, Director of Appellant and penalty of Rs. 25,000/- was imposed on Shri Sachin Vadhvana, authorised signatory of the Appellant under Section 112(a) of the Customs Act, 1962. Being aggrieved with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned at Sr. No.2 of test Memo. No details of such PVC content is mentioned for the remaining 3 samples. The volatile matter of prime grade PVC Resin are maximum 0.30%, whereas the volatile matter as reported by the Chemical Examiner was 16.2%, 0.045, 0.08 and 0.05%. The % of PVC content was mentioned in case of only one sample i.e. No. 2 and there was no mention of PVC content in other three samples. The report was silent on the methods adopted in testing. There are other parameters like density, VCM in residual PPM, absorbing amount of plasticizer for 100 Gms resin, degree of polymerization has not been even tested by Customs laboratory. 5. He also argued that except the Analysis report given by the Chemical Examiner, Vadodara and CRCL, New Delhi, there is no evidence to show that imported goods are of prime Grade and not of off Grade as declared. In the Chemical Analysis report of Chemical Examiner, Central Excise and Customs, Vadodara and New Delhi, Chemical Examiners have jumped to undue inference that samples are of Prime Grade PVC (Suspension Grade) Resins without adducing any justified reasoning and original adjudicating authority has accepted these reports witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 of Customs Valuation Rules 2007. However, Revenue has compared which is not comparable for enhancing the duty. In the present case, when imported goods are not mis-declared by Appellant and transaction value is available, it was required to accept the same as per the law settled. However, department has chosen not to accept declarations and such transaction value, hence, first of all, there has to be justified reason for rejecting the transaction value and then only it can be further proceeded to re-determine such value proceeding sequentially to Rules 4 to 9 of the Customs Valuation Rules, 2007. There is no reason or justification except assumptions and presumptions for alleged misdeclaration for rejecting transaction value with reliable evidences on one hand and on the other hand none of circumstances as are provided in Rules of 2007 for rejecting transaction value are existing, found or proved by the Revenue with reliable evidences. Since value is not correctly determined, in present case, in accordance with the provisions of section 14 of Customs Act 1962 or Customs Valuation Rules of 2007 with any reliable evidences, value of goods taken is not correct or as per the establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 (317) E.L.T. 295 (Tri. - Del.) CC v/s VIRASAT ELECTRONICS (v) 2013 (298) E.L.T. 290 (Tri. - Mumbai) - AUTO STORES v/s CC (vi) 2013 (297) E.L.T. 450 (Tri. - Del.) CC v/s D.M. INTERNATIONAL (vii) 2013 (296) E.L.T. 207 (Tri. - Del.) CC v/s RAINBOW IMPEX (viii) 2013 (295) E.L.T. 726 (Tri. - Del.) CCE v/s Century Metal Recycling Pvt. Ltd. (ix) 2013 (291) E.L.T. 549 (Tri. - Del.) CC v/s SHRI GAYATRI EXPORTS (x) 2013 (289) E.L.T. 346 (Tri. - Del.) CC v/s MARBLE ART (xi) 2013 (289) E.L.T. 305 (Tri. - Del.)- CC v/s NATH INTERNATIONAL (xii) 2013 (289) E.L.T. 169 (Tri. - Del.) CC v/s DM INTERNATIONAL (xiii) 2012 (286) E.L.T. 720 (Tri. - Del.) CC v/s ASIA PACIFIC DISTRIBUTORS (xiv) 2012 (278) E.L.T. 197 (Tri. - Del.) CCE v/s SAI SALES CORPORATION (xv) 2009 (247) E.L.T. 761 (Tri. - Del.)- UNITED COPIER SYSTEMS v/s CC (xvi) 2009 (243) E.L.T. 444 (Tri. - Mumbai) - MIDAS IMPEX v/s CC (xvii) 2009 (241) E.L.T. 536 (Tri. - Del.) CCE v/s OM SAIRAM TRADING CO. (xviii) 2009 (239) E.L.T. 468 (Tri. - Bang.) CC V/S MISRI APPARELS PVT. LTD. (xix) 2006 (202) E.L.T. 530 (Tri. - Mumbai) - NEHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below : - 12. These orders are now under challenge before this Court. We were referred to a number of test reports obtained by the appellant from various persons and on the basis of these opinion, the reports of the Departmental Chemical Examiner and also the Chief Chemist were assailed. We are of the view that the Assistant Collector cannot be said to have erred in relying upon the reports given by the Chemical Examiner and the Chief Chemist. It may be that in a given case, the report of the Chief Chemist may be demonstrated to be palpably wrong. In such a case, the Court may direct re-examination of the whole issue. But that is not the case here. It has not been shown that the Chemical Examiner or the Chief Chemist were in error in their analysis in any way. The views expressed by the Chief Examiner and Chief Chemist of the Government cannot be lightly brushed aside on the basis of opinion of some private persons obtained by the appellant. It is seen from the above that Hon ble Apex Court has also observed that there could be a situation where report of the Chemical Examiner is palpably wrong. The facts of the case before the Apex Court were thus different than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs v. South India Television Pvt. Ltd. - (2007) 6 SCC 373 = 2007 (214) E.L.T. 3 (S.C.). 15. Further, in the present case, particularly, when the invoice price of the appellant was not disputed on the basis of any evidence of wrong declaration of the value, the enhancement in the present case is illegal and incorrect. We find that there is no dispute that the customs has power to reject the transaction value and enhance the assessable value in terms of Customs Valuation Rules. However, such rejection of transaction value and enhancement of assessable value has to be on the basis of some evidence on record. Contemporaneous imports have to be considered in reference 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. Appellant has relied upon various decisions of the Tribunal holding that for any enhancement in assessment value, the transaction value has to be first rejected based on legal permissible ground as indicated in the valuation Rules. We find that in the present matter, Revenue has not advanced any such evidence to support their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been well settled by the Hon'ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited and Ors. reported in MANU/SC/0273/2021 in the following words: I. The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable. II. We have no hesitation to say, that the word other stakeholders would squarely cover the Central Government, any State Government or any local authorities. The legislature, noticing that on account of obvious omission, certain tax authorities were not abiding by the mandate of IB Code and continuing with the proceedings, has brought out the 2019 amendment so as to cure the said mischief... 18. With regard to pending dues of Customs, the Hon ble Supreme Court in the recent judgement dated 26th August 2022 of Sundaresh Bhatt, in Civil Appeal No. 7667 of 2021 held as under:- 54. On the basis of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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