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TMI Blog2001 (7) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... reply, by a letter, dated 26-6-2001, the appellants submitted that similar goods were regularly being assessed at U.S. $ 0.45 per Kg., and the same was accepted by all Custom Houses. The importer has also filed a Writ Petition in the High Court at Kolkata, and the Hon ble High Court directed the lower authority to grant hearing on 23-7-2001 at 10 a.m., and after giving such hearing to pass a reasoned order and furnish a copy of the same within 48 hours to the petitioner. 4. On the basis of personal hearing granted to the appellant on 23-7-2001 the lower authority has arrived at a finding that the appellant has not contended anywhere that their goods are different or inferior in quality, compared to the goods imported vide bill of entry No. 131242 by M/s. Indomass Trades Trans (P) Ltd.; that they have also submitted that the supplier in both the cases are same, and thus the goods in the present case and goods in the case of M/s. Indomass Trades Trans (P) Ltd. are very much comparable. Based on these findings, the lower authority enhanced the value of the impugned goods from U.S. $ 0.32 per kg to U.S. $ 1.05 per kg under Rule 6 of the Valuation Rules, 1988. 5. Being aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t burden squarely lies on the department to prove under-valuation. Value cannot be determined on inferences. 7. It has further been contended that in the case of Indoswiss Time Ltd. reported in 1996 (88) E.L.T. 77 (Tribunal), it was held that invoice value cannot be rejected on the basis of mere suspicion and without adequate material to show that it was less than the ordinary price in the International Trade at the time and place of import; that no justification has been put forth for rejecting the appellant s transaction value; that transaction value of appellant ought to be accepted in accordance with the mandatory direction contained in Rule 4(2) of the Customs Valuation Rules; that none of the exceptions mentioned in the proviso to Rule 4(2) of the Customs Valuation Rules exist in the present case; that appellant is not related to the supplier and there is no allegation that some consideration other than the invoice price has been paid directly or indirectly to the supplier of the goods. Therefore, there are no grounds for rejecting the transaction value; that the appellant has given adequate reasons to show that the item of evidence is equally invalid and cannot be used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2). Rule 5 provides that transaction value of identical goods must be ascertained and that should be taken for the purpose of assessment. Rule 5(3) says that in applying that rule, if more than one transaction has taken place, the lowest of such value shall be used to determine the value of the imported goods. If such determination is not possible under Rules 3, 4 5, the transaction value of similar goods should be ascertained under Rule 6, and failing Rule 6, deductive value has to be fixed under Rule 7. Rule 8 provides for residual method. Rule 8(2)(v) provides that no value shall be determined for minimum Customs values and sub-rule (vi) prohibits fixation of arbitrary or fictitious values. It, therefore, follows that assessment can only be on the basis of value fixed with reference to the price paid for goods actually imported into the country and not on notional or fictitious basis. 10. It has further been stated by the appellants that reasons for rejecting the value in the impugned order has not been given. No specific enquiry made by the authority in this regard. Significantly, it would be evident from the departmental relied upon bill of entry that it was filed on 19-6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for all ports and has been followed by the Custom House, Calcutta and other Custom House for determining the price of such goods. Authorities cannot take different view at different time on identical set of facts and circumstances based on stray evidence of a solitary importation of similar goods at higher price. If this is done appellants shall suffer prejudice. Appellants crave leave to submit several evidences of importation of similar goods assessed at US $ 0.45 Cents and adjudication orders passed at different course, at the time of hearing. 12. It has further been contended that as reported in E.L.T. volume 120 page A-66/67 a three Judge Division Bench of the Hon ble Supreme Court on 8-12-1999 dismissed on merit the Civil Appeal No. 3488-3490 of 1998 filed by the Commissioner of Customs, Calcutta against the CEGAT Order No. A-79/98, dated 4-2-1998 and reported in 1999 (108) E.L.T. 818 (T) Goodluck Industries v., Commissioner. While dismissing the appeal the Hon ble Supreme Court passed the following order : We have heard learned Counsel for the appellant, we find no merit in the appeals and they are dismissed. No order as to costs. 13. In the above cited case, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court on merit. (b) On the point of valuation he referred to the following two Supreme Court decisions : 1998 (98) E.L.T. 3 (S.C.) - Mirah Exports Pvt. Ltd. and 2000 (122) E.L.T. 321 (S.C.) - Eicher Tractors Ltd. (c) He has also submitted CC(A) Mumbai s Order-in Appeal, dated 23-2-2001 wherein price US $ 0.45 per kg. has been affirmed. (d) Order dated 11-1-2001 of Jt. Commissioner, CFS (Mulund) Mumbai would show that goods are being cleared at Calcutta Custom House at US $ 0.45 per kg. (e) Different orders passed by Shri A.C. Tikadar, Shri K.K. Biswas, Shri R.J. Manohar would show that value US $ 0.45 has not been disputed. (f) Annexures in the appeals are copies of bills of entry evidencing regular clearance of such goods at US $ 0.45. (g) He has also referred to decision of Hon ble High Court Calcutta reported in 1990 (45) E.L.T. 24 relevant Para 28 to 30. Hon ble Court has held that value of particular item accepted by the Customs authorities becomes a precedent and subsequently it can not be held that valuation is not correct. (h) In the instant case importation of above three appellants, date of shipment and date of invoices are much earlier to that of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Canadian origin. In any case, even assuming that the impugned goods were of Canadian origin, such solitary evidence cannot form the basis for enhancement of value as held by the Apex Court/Hon ble CEGAT in the case laws cited at Para 18 19 hereinabove. 21. The contention of the appellants that the departmental relied upon bill of entry was filed on 19-6-2001 for the goods of Canadian origin; that the goods were shipped on 12-4-2001 from Melifax Port in Canada, and the said bill of entry was assessed on the same day, but the importer has not paid the duty till date, nor has taken delivery of the said goods covered by the bill of entry, raises a doubt regarding the bona fides of the said transaction. However, I would refrain from making any observation as there is no evidence on record to confirm the contention of the appellants. I would however, observe that the trade of import of used clothing is highly competitive and a sudden spurt in the value of a consignment of more than two times the import value is rather unrealistic. Moreover, the old and worn used clothing have no fixed value and each consignment is likely to have different grade of material; the age of used clothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1988 has been vehemently contested by the appellants. The appellants contention on this aspect has been reproduced at Paras 7, 8 9. They have also relied on the Apex Court s decision reported in 1998 (98) E.L.T. 3 (S.C.) Mirah Exports Pvt. Ltd. and another decision reported in 2000 (122) E.L.T. 321 (S.C.) Eicher Tractors Ltd. I find there is sufficient force in the contention of the appellants, particularly because the Customs has been adopting the value of US $ 0.45 per kg in respect of similar/identical consignments, and there seems to be no logical reason to enhance the value to US $ 1.05 per kg. On the basis of a solitary bill of entry No. 131242, particularly when this evidence is not being applied to even subsequent adjudications of the original authorities as indicated in the preceding para (Para 23). The appellants have also referred to a decision of the Hon ble High Court, Calcutta reported in 1990 (45) E.L.T. 24 (relevant Paras 28 to 30), wherein the Hon ble High Court have held that the value of a particular item accepted by the Customs authorities becomes a precedent and subsequently it cannot be held that valuation is not correct. 25. In the instant case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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