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TMI Blog1991 (9) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... owder, extracted from the Computer print-out relating to imports during the past 120 days were annexed to the Show Cause Notice and it was alleged that the invoice price of US $ 7.5 per kg. CIF Madras did not represent the transaction value of the goods under Rule 4 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. (Hereinafter referred to as Customs Valuation Rules, 1988) and the minimum import price of US $ 17.16 per kg. CIF or transaction value in respect of identical goods noticed during the relevant period would be the assessable value under Section 14 of the Customs Act, 1962, in terms of Rule 5 of the Customs Valuation Rules, 1988. On this basis, it was alleged that as against the declared value of Rs. 1,76,837/- the correct assessable value of the goods was Rs. 4,04,604/- rendering the goods liable to confiscation under Section 111(m) of the Customs Act, 1962. The appellants were, therefore, asked to show cause as to why the goods should not be confiscated and penalty imposed on them under Section 112 of the Customs Act, 1962. In continuation of Show Cause Notice, the details of a consignment of Selenium Metal Powder imported at the rate of US ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disputed goods were imported in June, 1989. He argued that it was not legally permissible for the Department to compare the price of the imported goods with the price in respect of certain imports listed in the Computer print-out enclosed with the Show Cause Notice or import price of the goods cleared by M/s. Amco Batteries Ltd., Bangalore without examining the relevant contracts to determine dates of the contracts, the quantities contracted and the stipulated time of importation of the contracted goods. He contended that the Customs authorities had been permitting the clearance of Selenium Metal Powder at widely varying prices. In this regard he referred to the entry in the Computer print-out at Exhibit VIII of the paper book in which in October, 1989, M/s. Middle East Trading Co. had imported Selenium Metal Powder at the rate of 4.90 per lb. or US $ 10.7 per kg. He also referred to the copy of the Bill of Entry, marked Exhibit XIII against which Selenium Metal Powder of 99.9% purity imported by M/s. M.V. Overseas, Madras at the rate of US $ 7.5 per kg. was cleared in February, 1989. Shri Sanghi contended that the Department had failed to discharge the onus cast on them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs, Calcutta reported in 1987 (28) E.L.T. 318. 5. Dealing with the points raised by the learned JDR, Shri Sanghi stated that the appellants were not given sufficient opportunity to examine the Bill of Entry relating to the consignment cleared by M/s. Amco Batteries since it was not furnished along with the Show Cause Notice. He reiterated his stand that adjudicating authority was not justified in recording that the appellants had not contested the evidence relied upon by the Department in regard to the prevailing price of the imported goods since they had pleaded for the acceptance of the declared price on the basis of the terms of the contract and the Computer print-out in respect of imports of similar goods at lower prices. 6. We have examined the records of the case and the submissions made on behalf of both sides. It is seen that the question that arises for examination is whether the invoice price of US $ 7.50 per kg. (CIF) would be the assessable value of the imported Selenium Metal Powder of 99.9% purity or there was justification for the adoption of the higher price of US $ 17.16 per kg. (CIF) noticed in respect of the imports of certain consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les the value of the imported goods shall be the transaction value. If the value cannot be determined under Rule 3(i) then in terms of Rule 3(ii) the value has to be determined by proceeding sequentially through Rules 5 to 8 of the rules. Rule 4(1) defines the Transaction Value of imported goods as the price actually paid or payable for the goods when sold for export to India adjusted in accordance with the provision of Rule 9. Rule 4(1) which defines Transaction Value and Rule 4(2) which lays down the conditions for its acceptance read as follows :- 4. Transaction Value - (1) The transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provision of Rule 9 of these rules. (2) The transaction value of imported goods under sub-rule (1) above shall be accepted :- provided that- (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which (i) are imposed or required by law or by the public authorities in India; or (ii) limit the geographical area in which the goods maybe resold; or (iii) do not substantially affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r kg. CIF was subject to the condition of import of a quantity of 25 tonnes of Seleniun Metal Powder. Hence, we are of the view that in terms of sub-rule (2) (b) of Rule 4 of Valuation Rules, 1988 which provides that the transaction value of imported goods under Rule 4(1) shall be accepted provided the sale price is not subject to some condition or consideration for which a value cannot be determined, the invoice price of US $ 7.5 per kg. cannot be deemed as the transaction value of the goods being valued in this case. The Addl. Collector was, therefore, justified in holding that the declared invoice price of US $ 7.5 per kg. CIF on the basis of the contract between M/s. Smit Corporation and the Japanese supplier could not be deemed as the transaction value of the goods in terms of Rule 4 of the Customs Valuation Rules, 1988. 11. After having held that the invoice value of the goods could not be deemed as the transaction value under Rule 4 of the Valuation Rules, 1988 the Adjudicating Authority proceeded to determine the assessable value of the imported goods as US $ 17.16 per kg. CIF under Rule 5, on the basis of the transaction value of identical goods sold for export to India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of identical goods is available the lowest of such values has to be used for determining the transaction value of the imported goods, we are of the view that on the basis of the available documentary evidence, the transaction value of the disputed goods under Rule 5 of the Customs Valuation Rules, 1988 would be US $ 16.53 per kg. 12. In support of his case, the learned Counsel for the appellants has cited the decision of the Tribunal in the case of Mangla Brothers v. CC, Bombay reported in 1984 (15) E.L.T. 151 wherein it was held that the value of a consignment of 4500 pieces of an article could not be appraised on the basis of the price of only 1000 pieces of the same article. The learned Counsel has also placed reliance on the decision of the Tribunal in the case of Babcok Venkateshwara Hatcheries (P) Ltd. v. CC, Bombay -1985 (20) E.L.T. 335 in which it was held that onus of proving misdeclaration in the Bill of Entry is on the department and this onus can be discharged only on proof of proper facts which would discredit the price mentioned in the Bill of Entry and not on the basis of mere suspicion and surmises. The decision in the case of Basant Export Corporation v. CC [1989 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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