TMI Blog2005 (7) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... 99.5% purity and 99.9% purity which was even evident from the imports made by M/s. Saccha Soudha Pedhi that had imported poppy seeds of 99.9% purity at US $ 1050 PMT FOB and poppy seeds of 99.5% purity at US $ 945 PMT FOB. This aspect has been totally over looked by the Commissioner while considering the question of price variation due to the difference in quality of goods. The most significant lacuna in the impugned order is non-consideration of the contentions raised in the reply submitted by the appellant in March, 2001 particularly as regards the contract dated 4-10-2000 at Exhibit-6 annexed to further reply as referred to in para 4(v) thereof. The said contract was with the same International Trading Company and seems to have been exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are, therefore, set aside in both these appeals and the matters are remanded to the Commissioner for taking fresh decision in accordance with law and in the light of this judgment, expeditiously, preferably within three months from the date of the receipt of this order. Both these appeals are accordingly allowed. - HON'BLE R.K. ABICHANDANI, J. (PRESIDENT) AND K.C. MAMGAIN, MEMBER (T) For the Appellant : Rajiv Dutt, Sr. Adv. and Namarata Chopra, Adv. For the Respondent : S.M. Tata, Authorized Representative (DR) Order R.K. Abichandani, J. President. 1. These two appeals raise a common question and have been argued together. 2. In Appeal No. C/608/01, the appellant has challenged the order dated 27-3-2001 passed by the Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference in duty came to Rs. 7,35,482/-. The Commissioner imposed a redemption fine of Rs. 7,35,000/- in lieu of confiscation of goods keeping in view the quantum of the duty sought to be evaded. A personal penalty, covering the two bills of entry, of Rs. 75,000/- was imposed on the importer under Section 112(a) of the said Act. 4. The goods in question were white poppy seeds having purity of 99.5%. According to the appellants, the transaction value of these goods was US $ 850 (FOB) under various bills of entry. The goods were imported under contracts entered into on 16-10-2000. According to the appellants, the shipment of the goods took place between October, 2000 to March, 2001. Show cause notices came to be issued to the appellants on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder contract dated 4-10-2000, at the same price of US $ 850 PMT FOB. A copy of the contract was also Annexed as Exhibit-D along with the said additional reply. It was also emphasized that there was bound to be a difference in the price of white poppy seeds having 99.9% purity imported by Saccha at US $ 1050 PMT FOB and the goods having purity of 99.5% which were imported by the appellants as per aforesaid bills of entry. The appellant also referred to a contract dated 21-10-2000 under which Saccha Soudha Pedhi had also imported white poppy seeds of 99.5% purity, at US $ 945 PMT FOB. 6. The learned Commissioner, in the context of the decision of the Supreme Court in the case of Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai - 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obvious that Rule 10(A) being subordinate legislation cannot override the provisions of Section 14(1) and will be required to be read in the harmony of the Parent Act. 7. The Commissioner while referring to Spices Weekly which listed the price of the goods observed that, in view of Rule 8(2) no value could be based on the values at which the goods were exported to other countries and that he did not propose to enhance the value on the basis of the price mentioned in the Spices Weekly. He further observed that this, however, raised doubt in his mind about the FOB value of the goods in question. It is surprising that while in terms stating that in view of Rule 8(2) of the Valuation Rules, the price as mentioned in the Spices Weekly for export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as transaction which was very near to the sales contract entered into by the appellant on 16-12-2000. The impugned order does not give any reason as to why the said transaction was discarded, especially when is was specifically stated by the learned counsel before the Commissioner that M/s. Esjaypee Impex Private Limited have also cleared the goods at US $ 850 FOB . It appears to us that the learned Commissioner has adopted a lopsided approach by simply relying upon the import made by M/s. Saccha Soudha Pedhi of white poppy seeds of 99.9% purity without taking into account the other relevant transactions particularly the sales contract dated 4-10-2000 entered into by M/s. Esjaypee Impex Private Limited for buying white poppy seeds of 99.5% ..... X X X X Extracts X X X X X X X X Extracts X X X X
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