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TMI Blog2011 (2) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... uts, Lali Grade "C", Ungarbled", covered by two Bills of Entry No. 2253827 dated 14.10.2010 and No. 3944 dated 19.10.2010, imported at Cochin port. The importer declared the value of US $ 275 per MT. The learned adjudicating authority enhanced the value to Rs.34/- per kg. The learned Commissioner of Customs (Appeals) vide the impugned order upheld the enhancement of the value. The appeal is filed against the order of the Commissioner of Customs (Appeals). 2. It is contended by the appellants that they have entered into two contracts dated 15th March, 2010, and 1st August, 2010 respectively; under the contract dated 15th March, 2010, they imported 1,914 MT covered by 12 Bills of Entry; under contract dated 1st August, 2010, they imported 1,687.8 MT covered by 12 Bills of Entry, all the bills of entry, except two bills of entry dated 14.10.2010 and 19.10.2010, are provisionally assessed in terms of the order of the Hon'ble Kerala High Court and in respect of one bill of entry, no assessment is made; imports have taken place from April, 2010 to October, 2010; DGFT had issued Notification dated 4th June, 2008, permitting free import of betel nuts of the value above Rs.35/- per Kg., t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We heard both sides at length on 25th January, 2011. Mr. Prakash Shah, advocate appeared on behalf of the appellants and Shri P. R. V. Ramanan, the learned Special Counsel appeared on behalf of the department. 5. The appellants contended that rejection of invoice price by the learned adjudicating authority by invoking Explanation (1)(iii) to Rule 12 of CVR , solely on account of imports of betel nuts at other ports at a higher value is clearly not tenable in law. Rule 12 does not empower the assessing officer to reject the transaction value without establishing that the transaction value was not genuine and that Rule 12 does not provide a method for determination of the value of the imported goods. Rule 12 only provides mechanism and procedure for rejection of the declared value in case of reasonable doubt that it does not represent the transaction value. 6. He further submitted that if, the transaction value can be determined under Rule 3(1) CVR, 2007 and the transaction does not fall under any of the exception in Rule 3(2), there is no question of determining the value under the sequential rules. He submitted that there are no allegations of mis-description of the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57) ELT 625 (SC) (ix) Eicher Tractors Ltd. Vs. CC, Mumbai - 2000 (122) ELT 321 (SC) (x) Padia Sales Corporation Vs. CC - 1993 (66) ELT 35 (SC) (xi) Lan Eseda Industries Ltd. Vs. CC, Mumbai - 2010 (258) ELT 3 (SC) (xii) Dujodwala Products Ltd. Vs. CC (Import), Mumbai - 2009 (235) ELT 266 (Tri.-Mumbai) (xiii) Dee Pearls (I) Pvt. Ltd. Vs. CC, ICD, TKD, New Delhi - 2004 (167) ELT 236 (Tri.-Del.) (xiv) Finolex Industries Ltd. Vs. CCE, Pune - 2004 (174) ELT 341 (Tri.-Del.) (xv) Exide Industries Ltd. Vs. CC (I), Mumbai - 2010 (252) ELT 447 (Tri.-Mumbai) (xvi) Radhey Shyam Ratanlal Vs. CC (Adjud.), Mumbai - 2009 (238) ELT 14 (SC) (xvii) CC, Trichy Vs. Kiran Pondy Chem. Ltd. - 2010 (259) ELT 570 (Tri.-Chennai) 9. Shri P. R. V. Ramanan, the learned Special Counsel, while supporting the orders of the authorities below, submitted that the appellants do not deserve the out of turn hearing. They can always pay and clear the goods and can seek the refund, if they succeed in the appeal. He further vehemently contended that enhancement of the value is correct and proper in law. He submitted that department has shown the evidence that import at the other ports are at a higher value. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to hear the appeal at any rate within two weeks. Further, goods are admittedly lying uncleared. We are unable to accept the contention of the department that the importer should first pay the duty as per Order-in-Original and wait for hearing of the appeal in its normal course and seek refund, if they ultimately succeed in the appeal. 12. We are of the view that admittedly no findings are recorded by the lower authorities that the present imports are covered by any of the exception under the proviso to Rule 3(2) of CVR, 2007. The lower authorities have not found that there are restrictions as to the disposition or use of the goods by the importer; the sale or price is not subject to any condition or consideration for which a value cannot be determined in respect of the goods being valued; no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller; and that buyer is related to the Seller. The other imports relied upon by the department are not of the same quality, quantity and commercial level. 13. In our view, judgment of the Hon'ble Apex Court in the case Eicher Tractors Limited (supra) squa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order. No legal principle has been laid down therein." 16. In view of the aforesaid, the lower authorities could not have relied upon the decision in the case of Punjab Processors (supra). 17. The other decision relied upon by the lower authorities is in the case of Lan Eseda Industries Limited - 2010 (258) ELT 3 (SC). We find that this judgment is clearly distinguishable on facts. The Apex Court, held that: "6.?We have considered the aforesaid submissions in the light of the records. On going through the records, we find that the Commissioner of Customs has held that the supplier in the present case was not the manufacturer itself and that the importer and the supplier were related. The Commissioner has further recorded a finding to the effect that prices declared by the appellant were not true transactional value and that they were importing the goods at a lower price to evade the customs duty. The aforesaid findings were challenged before the Tribunal. The Tribunal has considered the respective cases and finally upheld the aforesaid findings mainly relying upon the prices of similar goods. 7.?It cannot be disputed that in the present case invoice of the manufacturers wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the department. The chart is as follows: Sl. No. B/E No. & Dt. Description Rate US$/PMT Qty. MT Invoice Vale US $/(Rs.) 1. 867074 / 28.9.10 Betel Nut Split 750 105 US $ 78,750 INR Rs.37,20,938/- 2. 867117 / 28.9.10 Betel Nut Split 750 105 US $ 78,750 INR Rs.37,20,938/- 3. 5877328 / 3.8.10 Betel Nut Lali 724 79 US $ 57,200 INR Rs.27,08,420/- 4. 802983 / 24.8.10 Betel Nut Split 750 19.2 US $ 14,400 INR Rs.6,81,840/- 21. We find from the above chart that description of the comparable imports relied upon by the department is not the same. No material is produced on record to show that the imported goods under assessment and goods imported at other ports are of the same quality, quantity and commercial level. The imported goods are agricultural produce and have different varieties. The goods imported by the Appellants are described as "Betel Nuts Split Lali-Grade C - Ungarbled", whereas other imports are of "Betel Nut Lali" and "Betel Nut Split". No material is on record to show that they of the comparable quality. We find that there is no material whatsoever to show that the comparable imports are at same commercial level. Admittedly, the quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at: "6.?We have gone through the records of the case. The Revenue has enhanced the value of the Betel Nuts merely on the basis of data in respect of imports through other ports. When we see the quantity imported at other Ports, they are really very low compared to the quantity imported by the appellants. Of course this factor has been taken into account by the first Appellate Authority. He has recorded a finding that the appellant M/s. Keveeyam Company had entered into a contract for 1200 MT of import of Betel Nuts. He has also noted the facts of several imports from the same supplier by the appellants. Under these circumstances, there is no need for the Revenue to doubt that a contract existed between the appellants and the foreign supplier. The appellants have also stated that they visited the foreign country to negotiate the price. The appellants have produced bank documents to show the dispatch of the transacted amount. Revenue has not established that the appellants paid more than the transaction value through some other channel. Revenue does not have any strong reasons to assail the invoices produced by the appellants. Moreover, there is no evidence that the import effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y imported by them was 55,361 MT, which is 3= times more, which is not comparable and is contrary to the provisions of sub-rule 2(iii)(a) of Rule 12 of the CVR, 2007. Rule 12 of CVR provides that : Rejection of declared value. - (1)?When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of Rule 3. (2)?At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation : - (1) For the removal of doubts, it is hereby declared that : - (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). In the present case, the transaction value has been rejected on the ground that the sale was not in the ordinary course of trade under fully competitive conditions and this finding has been arrived at on the ground that other importers were importing the same goods from the same country at around the same point of time at higher prices. This, however, is not legally permissible, as held by the Tribunal in the case of Mark Auto Industries Ltd. v. CC, New Delhi - 2003 (162) E.L.T. 261 and Devika Trading Pvt. Ltd. v. CC, Mumbai - 2004 (167) E.L.T. 75. Since the only basis for rejecting the transaction value is the noticing of contemporaneous imports at higher prices, the transaction value was required to be accepted, and we, therefore, set aside the impugned order of rejection of transaction value and loading of value, and allow the appeal." 25. In our view, the rejection of transaction value in the facts of the present case is thus clearly contrary to the above decision of the Hon'ble Apex Court and the Tribunal and cannot be sustained. 26. We hold that in the present case, there is no material on record to reject the transaction value and the comparable imports on which depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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