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TMI Blog1999 (6) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... ile there was no import of such goods at the Nhava Sheva port prime bearing tube was imported at Mumbai Custom House in April, 1998. There were two such imports, the lower of these at a declared value equal to $ 1356 per MT. Notice was therefore issued proposing to adopt value of US $ 990 per MT arriving at by deducting from the price of prime tubes US $ 1356 per MT 27% on account of the goods being stock lot. The importer resisted the notice contending that the value declared in the invoice ought to be accepted disputing applicability of prime goods and relying upon earlier import in May, 1997 US $ 450 per MT under Rule 10 of the Customs Valuation Rules. The Asstt. Commissioner did not accept this contention. He said that the value as decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice value not acceptable. He emphasized that the doubt of its truth and accuracy of declared price under- valued has to be reasonable. He further said that rules did not permit the comparison value of prime goods with those of secondaries. He was of the view that the matter required to be examined afresh by the Asstt. Commissioner because documents furnished subsequent to the hearing before him were not available to the Asstt. Commissioner. He therefore remanded the matter to the Asstt. Commissioner. 3. That authority passed orders in 1999. He noted that the importer had not produced, despite being repeatedly asked, an invoice of the manufacture of the goods. He found that the value of the goods was disproportionately low considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Commissioner (Appeals) in his order remanding the matter to the Asstt. Commissioner as to the applicability of 10A are not in the nature of obiter dicta and it was not incumbent on the Asstt. Commissioner to abide by this remarks. He says, even otherwise, the Commissioner (Appeals) could not have been appealed by the department since it was not aggrieved by it as the Commissioner contends remanded the matter. He cites the judgment of the Supreme Court J.D. Pheroz Shah Gandhi v. H.M. Cervaie - AIR 1971 SC 385. He doubts whether the goods were secondary because there was no such statement in the invoice or the packing list. He contends that in the absence of import of similar or identical goods, recourse to Rule 8 of Valuation Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals)'s order left the value to be decided by the Asstt. Commissioner, is no answer. The Asstt. Commissioner was bound to apply, in his redetermination of the value, the criteria prescribed by the Commissioner (Appeals). The criteria specified would apply, not only to the goods in consideration but to other goods also to the extent that the fact of importation permitted such application. The judgment of the Supreme Court cited by the Departmental Representative was in a different context and would not apply to the situation of facts that we are concerned. 7. It is also to be noted that the department has itself time and again appealed orders of the Commissioner (Appeals) remanding the matter back; it has not been determined b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question that we are called upon to answer. We only note that this was the Commissioner s direction (his order was not appealed) which was required to be followed. The appeal would therefore have to be allowed. 10. Even if the Commissioner did not give any such direction, it is difficult to uphold the department s case. It was not disputed by either sides that goods are considered as secondary goods because of the presence of defects, which reduces them not conforming to the requirement of prime goods. Their value therefore, would invariably be lower than the value of prime goods. However, not all goods of second grade or quality could have the same value. Some such goods would have fewer defects rendering them suitable for uses to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al provisions of the Valuation Rules and sub-section (1) of Section 14 of the Act, and on the basis of data available in India. In determining the value under this rule, the exclusions prescribed in sub-rule (2) of that rule have to be taken into account. None of these exclusions relates to determining the value of secondary or second-hand goods from the value of prime goods or unused goods as the case may be. If the argument of the appellant in this regard is accepted, it would be impossible to determine the value of secondary or second-hand goods in the absence of contemporaneous importation of comparable secondary or second-hand goods. It would, as we have noticed, not be easy to find import of such comparable goods. It is unreasonable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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