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TMI Blog1998 (12) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Appeal impugned No. 53/98, dated 15-4-1998 the ld. Commissioner (Appeals) has allowed the appeal which contains the claim of US Dollars 36,000/- Per M.T. Revenue has filed appeal No. C/554/98/MAS against this order impugned in favour of M/s. Adhani Exports. In the second case, the facts are similar. The Order-in-Original is No. 56/98-GR. 7, dated 13-2-1998 and similar Order-in-Appeal was passed bearing No. 335/98, dated 15-4-1998 to similar effect. The importer in this case is M/s. Intercontinental (India) and the Department s appeal for consideration before us in this case is C/553/98/MAS. Since both the matters are identical, they were heard together and are being considered by this common order. 3. Heard Shri Victor Thiagaraj, ld. SDR. He reiterates the grounds of appeal and submitted that in three earlier cases of import of Vitamin Mixes, the prices of US Dollar 8,200/- Per M.T. had been accepted. He further submitted that the observations of the ld. Commissioner (Appeals) in para 3 of Page 5 of the order impugned to the effect that unconnected imports have been relied upon is factually incorrect because the cases of imports which are relied upon by the department are also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly their associates. While considering that each import of Vitamin Mixes is bound to be slightly different, but in the present case it does not meet the standards. It has not been as per the standard recommended by MPEDA. In view of these arguments ld. SDR concluded that reliance by department on the contemporaneous imports by the Water Base Ltd. at US Dollars 8200/- P.M.T. is valid and there was no infirmity in the Order-in-Appeal. He therefore prayed that the impugned Orders-in-Appeals be set aside and the Orders-in-Original restored. 4. Heard ld. Advocate Shri V.S. Nankani for both the appeals. He submitted as follows :- (i) A perusal of para 54 of the relevant Import Export Policy AM 92-97 would show that the basic Customs Duty is related to the value of the goods, hence the main issue concerned in these appeals of the Revenue is concerning valuation of the goods imported; (ii) He drew the attention to the Sl. No. D3 of the Import - Export norm for fish products under the said Pass Book Scheme (page 197 of the Paperbook) in which the export item Frozen Shrimps, both Black Tiger and White Shrimps oh import norms fixed at Clause (j), read as follows :- Exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me price at which they have also imported at a later date. He relies on the Bill of Entry and the Invoice at pages 21 22 of the Paperbook and submits that this is a clear case of contemporaneous imports of same kind of goods. He, therefore, submitted that there is no error in the ld. Commissioner (Appeals) s findings that the goods imported by the appellants are not comparable with the imports relied upon by the department in view of the substantial difference in composition on record. 6. Ld. Advocate submits that the recommendations by MPEDA relied upon by the department does not concern the concentration of Vitamins in the Vitamin Mixes to be imported. He submits that it has been quoted out of context in the chart submitted by ld. SDR A perusal of the said Circular would show, he submits, that the recommendations are with respect to the quantum of Vitamins per Kilogram of feed which is required for optimum feeding of Shrimps. Therefore, the Circular deals with the composition of feed finally and used in this Acqua Culture and has nothing to do with the import of the Vitamin pre-mixes which would be just one of the ingredients in the final feed so prepared. 7. He further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us : - (i) Whether the transaction value as represented in the Invoice and Bill of Entries of these consignments need to be lawfully rejected under the Customs Act? (ii) Whether the contemporaneous imports relied upon by the Revenue are applicable to the facts of these cases, particularly, of being comparable goods are not? (iii) Whether the contemporary import of VICTORIA MARINE submitted by the importers is to be considered as good evidence in law? 11. We find that the department has not been able to lead any evidence to show that the Invoice under which these goods have been imported, i.e. this transaction, is a fraudulent one inasmuch as that there was some fraud in the value declared and that this was not therefore the fair value. There is no evidence to show that there was a conspiracy between the importer and the foreign seller to over-value the said goods for other considerations. Therefore, the transaction value declared in the Invoice Bill of Entry for these imports cannot be rejected by the Department merely on the grounds of fraud. It is needless to say that the onus to so prove rests on the department and not on the importer. 12. The department has appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... picions, there is nothing on record to show that detailed investigations were resorted to by the department to uncover these suspicions through sufficient evidences. It is one thing to say that M/s. Victoria Marines were associates of the present appellants and another thing to show by evidence that not only were they associates of the present appellants but also that they were party to a conspiracy with the present appellants leading to the said import of the alleged pilot consignment. There is not an iota of evidence on record led by the department to support their allegations in this regard. Therefore, we cannot but conclude that the said contemporaneous imports relied upon by the appellants are good evidence under Section 14 of the Customs Act. 14. The department also bases its findings and conclusions on certain letters particularly letter dated 4-7-1996 of MPEDA. The said letter has been perused as available at page 96 of the Paperbook. A perusal thereof shows that MPEDA itself concedes as follows : - As regards the concentration/percentage of Vitamin Mixes for preparation of Shrimps feed, it is difficult to give the exact details and vary according to the brands/manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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