TMI Blog2004 (7) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... e of US $ 9 per pair totally valued at US $ 14,391 CIF and filed a bill of entry for their clearance. They were assessed to duty enhancing the value from US $ 9 to US $ 11.60 per pair in respect of one model, US $ 9 to 11.74 per pair in respect of another and US $ 9 to 11.81 per pair in respect of the third one. This revision of value is in accordance with a formula invented by the Commissioner of Customs, Mumbai. The formula is contained in a letter dt. 11-1-2003 by the Commissioner addressed to the Chief Commissioner. We append the letter to this order so that we don't have to reproduce its contents here. After the bill of entry was assessed the goods were examined by the shed appraiser in the presence of officers of C.I.U. Such an examination resulted in the discovery that the consignment consisted of three different models, of three different sizes and wattage. The model numbers are TS-A 6955, TS-A6985 and TS-A6995. The invoice doesn't speak of any 'TS' though. The goods were seized on the ground that the importers mis-declared the value and material particulars. The goods were imported from a trader in Dubai. Apart from the brand, the sizes and the wattage no other technical d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to a dis-advantage vis-a-vis other importers when a different norm is applied to their goods. The case of Techno Marketing v. CCE, Calcutta, Order No. 640/03 dt. 18-11-2003 [2004 (164) E.L.T. 113 (T)] was relied upon. (c) The Commissioner erred in discarding the transaction value relying on some prices quoted in some obscure quotations engineered by the investigating officers themselves (S/Shri Sharma and Colaco). The case of Overseas International v. CCE, Chennai [2001 (127) E.L.T. 599 (T) = 2000 (41) RLT 101 (Tr.)] is relied upon to agree that quotations cannot overrule the prices shown in the invoice. (d) Reliance on prices exhibited in the internet is erroneous. Aggarwal Distributors Pvt. Ltd. v. CCE, New Delhi [2000 (117) E.L.T. 49 (Tri.)] was relied upon. (e) Cross examination of Shri Sharma and Shri Colaco was not allowed resulting in gross violation of principles of natural justice. (f) Burden of proving under-valuation is on the department and it can only be discharged by production of affirmitive evidence and not on the basis of suspicion etc. The department failed to produce any worthwhile evidence. Puja Poly Plastics Pvt. Ltd. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Asia Enterprises v. CCE, [1995 (79) E.L.T. 322 (Tri.) which is later upheld by the Supreme Court [1997 (94) E.L.T. A59 (S.C.)] and argued that when the imported goods were not supplied by the manufacturer and when the investigation revealed that higher prices were indicated in quotations, declared value could be rejected. 13.He argued that when goods of various models were imported but uniform price for all the models declared irrespective of model and combination without any details, invoice price is not acceptable. In support of this contention he relied upon the case of Maya Enterprises v. CCE, Kandla [1994 (71) E.L.T. 817 (Tri.)]. In the present case the three models of speakers have different specifications but an uniform price is declared. Once the declared value is rejected on this ground the department can determine the assessable value on the basis of evidence, under Rule 8 of the Valuation Rules, in the absence of any other recourse available under Rules 5, 6, 7 of Valuation Rules. 14.In regard to the letter dt. 11-1-2003 of the Commissioner, Mumbai addressed to the Chief Commissioner which according to the appellants formed the basis of Valuation of car speakers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade as well as from other sources and the prices are also indicated size-wise and brand-wise, the prices indicated in the circular should commend itself for adoption in cases of doubt". We have perused the said letter. The letter further reads thus "However, if evidence of higher price is noticed or provided by agencies the aforementioned floor price (emphasis provided) will be revised". In the present case evidence of higher prices is gathered by the agency (CIU). The letter cited supra provides for revision/determination of price in case of fresh evidence indicating higher prices for car speakers. What the Commissioner did was exactly this. Again, we are not aware whether the imported goods in the case before the Delhi Bench are identical with the ones we are concerned with. Valuation Rules themselves do not provide for any floor prices that could be adopted while determining the value of imported goods. It is the transaction value or the value determined in accordance with the said rules that should commend itself for adoption and not those mentioned in some letter of some Commissioner irrespective of the fact that evidence of higher prices is brought to the notice of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department is not bound to go by the letter and sprit of the Commissioner's letter while determining the value of imported goods. This is particularly so when the department decided to reopen the cases of similar goods cleared in the past. 22.Rejection of the declared price is one thing determination of value is another. It is therefore necessary to see whether the Commissioner re-determined the value of the impugned goods in accordance with the valuation rules. We proceed to do so. 23.The evidence suggesting that the speakers command a much higher price than what is declared by the appellants is in the form of quotations, and prices indicated to the internet. The prices indicated both in the website and the quotations are wholesale prices. A lot of arguments were advanced against acceptance of the prices indicated in the quotations. It appears that the quotations themselves, though were given by traders in Dubai, were engineered by two over enthusiastic officers. We observe that so long as the quotations themselves are tendered as evidence, the appellant had opportunity to demolish them by producing evidence in their favour. They did not avail of the opportunity except asking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xactly served the cause of finding out the real value of the speakers. A few more of such letters would permanently discourage the importers from declaring the real value of the goods. 27.We have also considered the argument that just as a single Swallow does not make a summer, a single quotation or a couple of them cannot form the basis for rejecting a declared price. We could have agreed with that preposition but for the fact that in the present case the Commissioner relied on not a just of couple of quotations but also on the internet prices, distributor prices etc. to reject the declared price. We feel that it is perfectly in order to do so. We do not find any infirmity in so far as the revision of the value. 28.We observe that the adjudicating officers do not normally confiscate the goods and impose penalties on the importers while rejecting the transaction value. In the present case the Commissioner confiscated the goods and imposed penalties. We find that such an action is called for in the present case at least for two reasons. The value has been misdeclared so grossly that it attracts the charge of under-valuation. In other words it is not merely an issue where a trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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