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TMI Blog1998 (5) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... polyester buttons from different exporters of Taiwan and filed Bills of Entry (BEs) declaring the value as indicated in the invoice. They also submitted the suppliers price list/declaration before the lower authority at the insistence of the Assistant Commissioner (AC) and furnished all the materials relied upon by him in the order in original. After the orders have been passed no such materials had been supplied to them though they had specifically asked for it. Therefore, they had urged before the Commissioner (Appeals) violation of principles of natural justice. They also disputed the lower authority s contention that they had agreed for enhancing the price by their letter dated 5-2-1991 by which they had only explained under what circumstances they were securing the consignments by paying higher value. The Collector has held after hearing them that the lower authority has not assigned any reason for not accepting the invoice value but has gone to determine the value on the basis of value of purportedly same goods imported by other importers at Madras and Bombay even without observing the elementary principles of natural justice which require that such materials proposed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon by the original authority and also the difference in price with that of the importer s goods are correct. He submitted that the goods are much different in quality and the same also did not have any brand name. Therefore, resorting to Rule 6 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 is not justified. 5. Arguing for the importers, the learned Consultant pointed out that the evidence relied upon by the Revenue was not disclosed to the respondents and hence the order has been rightly held to be violative of principles of natural justice. Therefore, it was contended that the invoice relied upon by the AC are not contemporaneous. In these, three invoices are of traders and were of different dates and there were two price lists of M/s. Rize Co. Ltd., Taiwan and M/s. Thai Button Co. Ltd., Taiwan and there was no invoice and cannot be accepted by them as evidence. She pointed out that in one case the place of importation is Bombay. She pointed out that there is dispute regarding the genuineness of the manufacturers invoice. She relied upon the judgment in the case of Sai Impex v. CCE reported in 1992 (62) E.L.T. 616 wherein it has been held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by other importer is not conclusive for determination of the question of under valuation. The Supreme Court held that the relationship between the importer and the foreign supplier is a relevant factor because the price of the old customer may be different from that of the other who have been offered totally new price. The Supreme Court held that the lower price obtained after considerable negotiations is acceptable. (4) 1986 (81) E.L.T. 287 (Tribunal) in the case of CC, Delhi v. Blue Star Enterprises. In this case, the Larger Bench held that the show cause notice did not indicate the existence of any reason or belief that the transaction value was not genuine value or there is reason to suspect it. The show cause notice merely contains the observation that there is no international trade in used machines. The Tribunal held that, that also cannot be a matter of assumption but a matter to be supported by materials which are lacking in this case. Further it was observed that the show cause notice did not indicate any specific enquiries were made in this regard by the authority. The same is the position with regard to the order passed by the Deputy Collector. Therefore, it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence in quantity, quality and crop origin if taken into account the declared price can be regarded as reasonable. Hence the order enhancing the value set aside by the Tribunal. (11) 1997 (90) E.L.T. 68 is the case of Sree Rajendra Mills Ltd. v. CC, Bombay. It has been held that invoice value cannot be rejected merely because the machinery imported is second hand. 6. On consideration of the submissions made, we notice that in the instant case, the evidence referred to by the Revenue have not been put forth to the importers and therefore, the Commissioner (Appeals), finding that there has been violation of principles of natural justice is sustainable. In the instant case, the import has been directly from the manufacturers while in the case relied upon by the department three invoices are from the traders, and one invoice was of M/s. Dazzling International dated 3-2-1991. Invoice of M/s. Rize Co. Ltd., Taiwan is also relied upon by the department. The other invoice relied upon by the department is dated 30-10-1990 and invoice of M/s. Harikison, dated 4-11-1990. From these we can see that there are varying prices for varying sizes of polyester buttons. From the comparative chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemporaneous. Therefore, as rightly contended by the importers, reliance of the evidence by the department is varying with that of the invoice of the supplier of the goods. It is also seen that in the present case, the importers are not one individual, but three parties. Therefore, invoice of the importers herein are identical. Therefore, it cannot be said that the independent importers here have colluded with the suppliers for under valuation. In this view of the matter, the judgment relied upon by the importers i.e. in the case of Sai Impex is required to be applied as in this case, the Tribunal clearly held that the best evidence for the price of the imported goods is that of the manufacturer s invoice which represent the transaction value under Rule 4 of the Valuation Rules. As each of the importer is independent, therefore, the allegation that they under valued the goods is not acceptable. While the invoice relied upon by the department are not comparable as the traders normally add their profit s margin and there- after they supply the goods to the supplier at higher price. The ruling rendered by the Hon ble Supreme Court in the case of Nippon Bearings (P) Ltd. (supra) is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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