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TMI Blog2007 (7) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... o the investigation, the show cause notices were issued to the following parties: (i) M/s. Vijay Cine Service (ii) M/s. Vijay Cine Services Pvt. Ltd. (iii) Shri Amrut Vijay Parab, Proprietor of M/s. Vijay Cine Service (iv) M/s. Nivedita Vijay Parab, Director of M/s. Vijay Cine Services Pvt. Ltd. (v) M/s. ISCO Optic AG, Germany. 3. The show cause notices proposed for rejection of transaction value of Rs. 2,50,245.43 under Rule 10A of the Customs Valuation Rules, 1988. The value was south to be enhanced to Rs. 44,51,752/- (Euro 92,360) FOB in terms of Rule 5 of the Customs Valuation Rules, 1988. The differential duty of Rs. 24,47,813/- was demanded under Section 28 of Customs Act along with interest. Further, there was a proposal for confiscation of the impugned goods under Sections 111(d) and 111(m) of Customs Act, 1962 read with Sections 3(2), 3(3) and 111(1) of the Foreign Trade (Development and Regulation) Act, 1992 read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; The learned Advocate took us through the records, especially to the report of one Shri Vignesh and Shri S.S. Naik, Lab Superintendent of IIT, Mumbai wherein the various defects in respect of the impugned goods like improper coating, dots in lenses, fungus growth, etc., have been pointed out. The main contention of the learned Advocate is that the impugned goods cannot be compared with the goods imported by Ushakiron. Hence, in his opinion Rule 5 of the Customs Valuation Rules cannot be made applicable. (v) It was urged that the Customs department carried out certain investigation through German Customs Authorities in respect of foreign supplier and the report which is in their favour have not been shown. (vi) In respect of earlier import, the assessment has become final and no appeal had been preferred by the department. (vii) The sale price of similar or identical goods is not relevant and which cannot be a basis for rejecting the transaction value. (viii) There is no evidence of any wilful suppression of facts warranting invocation of extended period. (ix) The duty of Rs. 40,40,414/- has been demanded from M/s. Vijay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tradictions in the statements of Ms. Nivedita, Director. She stated that the manufacturers are not manufacturing these types of lenses for the last 15 to 20 years. But at the same time, she has claimed that the impugned goods are specially manufactured for them as a special case. However, her brother Shri Amrut Vijay Parab says that the goods were manufactured in 1990 and were lying unsold. If these types of goods were not manufactured by the supplier for the last 15 to 20 years, then how can there be import of identical goods in the year 2001 and 2002? The statement that the impugned goods are old stock is only an afterthought. Moreover, the importer never declared that the goods are old stock at the time of import. (ii) The learned SDR referred to Para 10 of the impugned order wherein it is stated that Shri Binod Pradhan, a well known Cinematographer of Mumbai Film Industry opined that the lenses were in good condition and he was 99% sure that those could be used as they were. (iii) Our attention was also drawn to Para 11 of the Order-in-Original. In letter dated 17-1-2001 from ISCO Optic, it is stated that M/s. Vijay Cine Services were their exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fungus, etc., as mentioned by M/s. ISCO Optic vide their letter dated 10-1-2003 is not correct. The only deficiency pointed out was relating to calibration. This report is in conformity with report of Shri C. Vignesh, Cinematographer. (ix) The reliance on Eicher Tractor case is not correct because during that period Rule 10A was not in existence. In the present case, Rule 10A has been invoked and transaction value has been rejected under Rule 10A. In respect of imports which are effected after the introduction of Rule 10A, the Revenue Authorities can press into Service Rule 10A in the absence of circumstances mentioned in Rule 4(2). Reliance has been placed on the following decisions : (a) Commissioner of Customs, Bangalore v. H. M. Leisure - 2006 (199) E.L.T. 464. (b) Jain Shudh Vanaspati Limited - 1996 (86) E.L.T. 460 (S.C.). Findings 7. We have gone through the records of the case carefully. The issue involved in these appeals is the correct valuation of the following items imported by the appellants:- (i) Anamorphic lenses (40 mm, 50 mm, 75 mm, 100 mm and 135 mm) vide Bill of Entry dated 20-12-2002. (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the value of the lenses based on the price at which M/s. Ushakiron Movies imported similar goods. 7.2 The main contention of the appellants is that the goods imported by them are actually from the stock lot and, therefore, they cannot be compared with the imports of M/s. Ushakiron Movies. The Commissioner has examined this contention but, did not accept the same for justifiable reasons. He held that the appellants claimed that the goods are from stock lot only after the Department commenced the investigations. If the goods are really from the stock lot, definitely, the contention of the appellants deserves a favourable consideration. The available records of investigation indicate that such a claim of the appellants cannot be accepted. The Commissioner has recorded that Ms. Nivedita V. Parab, in her statement dated 31-12-2003, had stated that the lenses of this type were not being manufactured by the supplier company for the last 15 to 20 years and the subject lenses were specially manufactured for her company as a special case. She has also stated that these lenses were specially manufactured on their request and the price quoted to them was only for their company. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 5 of the Customs Valuation Rules. 7.4 On a very careful consideration of the findings of the Commissioner, we are of the view that the contention of the appellants that the goods are from stock lot cannot be accepted and the value of the impugned goods are required to be enhanced on the basis of the price of similar lenses imported by M/s. Ushakiron Movies Pvt. Ltd., Hyderabad. Hence, we uphold the Commissioner's decision in enhancing the value of the lenses imported on 20-12-2002 and also on 9-10-2002. 7.5 Apart from the lenses, the Commissioner has dealt with the under valuation of the following goods :- (i) Jimmy Jib Cranes (ii) Angenieux HR 25-250mm lens. On the valuation of the Jimmy Jib Cranes, the Commissioner has given a finding in para 64 of the impugned order that M/s. The Grips Company, Mumbai imported similar goods on 31-12-2001 at assessable value of Rs. 11,72,743/-. But, the appellants M/s. VCS imported identical goods on 23-10-2001 and 12-12-2001 at an assessable value of Rs. 1,18,054.48 and Rs. 1,18,176.82. Therefore, he had ordered enhancement of the value on the basis of contemporaneous import value. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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