TMI Blog2002 (6) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... tails among other things, the quantity of the goods imported, date of importation, value declared by the importers and the value sought to be enhanced by the department. Appeal No. Quantity imported (MT) Value declared Enhanced value Dt. Import Split Whole PMT Split Whole C/188/2001 100.414 40.046 US$ 400 US$ 780 US$ 1100 1/2000 C/190/2001 120.6 US$ 400 US$ 780 1/2000 C/191/2001 89.11 25.000 US$ 400 US$ 780 1/2000 2. Proceedings were initiated against the appellants for mis- declaration and attempt to evade payment of customs duty by is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he crop yield and other factors and the quality can be assessed only on test and the item being put to use. They have contended that transaction value cannot be ignored unless it is shown that there had been clandestine remittance of value in excess of the invoice value and mutuality of interest between the sellers and buyers is to be established before resorting to rejection of the invoice value. They contend that no evidence has been let in by the department that there was any remittance of money in excess of the invoice value. They have also contended that the two contemporaneous imports at higher prices relied upon by the department is not correct as they are not comparable for the reason that it is for the department to discharge the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher quantity imported is to get credence. They have also cited the judgment in the case of CCE v. M/s. Tapan Trading Co. Bombay in Appeal No. C/53/95A decided on 5-12-2000 [2001 (128) E.L.T. 456 (Tribunal)]. 5. The learned SDR defended the order and submitted that the learned Commissioner has taken into consideration the Hon'ble Supreme Court judgment in the case of CC, Mumbai v. Shibani Engineering Systems reported in 1996 (86) E.L.T. 453 (S.C.) wherein it was held that when transaction value is ridiculously low and totally unrealistic, goods can be assessed on the basis of contemporaneous imports. He has also noted the judgment of the Apex Court in the case of Eicher Tractors Ltd. reported in 2000 (122) E.L.T. 321 (S.C.) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered as contemporaneous import. Likewise the importation made by M/s. Diamond Traders cannot also be considered as contemporaneous import for the reason that the quantity involved was only 14 Tonnes, whereas the quantities involved in the present cases were much more as indicted in the table on page 2 above. Further we find that in the case of Spices Trading Corporation v. CC, Madras (supra), it was held that stray incidence of import at higher value is not to be adopted totally ignoring other attending circumstances and that higher quantity imported is to get credence. It was also held therein that transaction value has to be adopted unless the department can produce the objective reasons and strong evidence that declared value was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CVR, 1988 by relying upon two importations viz. M/s. Diamond Traders and that of M/s. Gandhi Traders. We have already held that the importations made by these two parties cannot be considered as contemporaneous. It is also not the case of the department that there was clandestine remittance of value in excess of the invoice value and mutuality of interest existed between the two parties. In view of the above discussion and in the facts and circumstances of the case, we are therefore of the considered opinion that the department has not discharged the burden cast on them that the importers have misdeclared or undervalued the goods. We therefore, set aside the impugned orders and allow the appeals, with consequential relief, in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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