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TMI Blog2012 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Victory Merchantite Corporation Pvt. Ltd., the declared value of the consignments was US $ 35488 CIF, US $ 33615 CIF, US $ 3894 CIF and US $ 44189 CIF respectively equivalent to Rs. 15,77,441/-, Rs. 14,94,187/-, Rs. 17,30,883/- and Rs. l9,64,201 respectively and after adding 1% landing charges, the assessable value on the basis of the declared price came to Rs. 15,93,216/-, Rs. 15,09,129/- Rs. 17,48,192/- and Rs. 19,83,843/- respectively. 1.2 The department decided to value the consignments covered by the Bills of Entry No. 12, dated 17-2-2006, No. 13 dated 17-3-2006 @ 2 US$ per Kg. CIF and since the declared weight of these consignments was 18010 kgs. and 18710 kgs., the duty in respect of these consignments was assessed on the assessable value of Rs. 16,01,089/- and Rs. 16,63,319 respectively and accordingly these consignments were cleared on payment of duty amounting to Rs. 5,51,468/- and Rs. 5,72,903/- respectively. 1.3 In respect of other two consignments covered by the Bill of Entry No. 14 and 15 dated 17-2-2006 duty was assessed on the basis of the declared CIF price and accordingly, these consignments were cleared on payment of duty amounting to Rs. 6,07,136/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Tribunal in the case of Gira Enterprises v. CCE reported in 2006 (194) E.L.T. 92, which is squarely applicable to the facts of this case, that in this judgment, the Tribunal passed a detailed order after discussing various case laws and clearly distinguished the facts in the judgment of the Apex Court in the case of Eicher Tractors Ltd. and followed the judgment of the Apex Court in the case of Raj Kumar Knitting Mills Pvt. Ltd. reported in 1998 (98) E.L.T. 292 (S.C.), that the Commissioner (Appeals) grossly erred in giving finding that transaction value can only be rejected if the conditions specified in sub-rule (2) of Rule 4 of the Valuation Rules are not satisfied, as transaction value can be rejected under Rule 10A of the Valuation Rules also and that in view of this, the impugned order is not correct. 5. Shri Prem Ranjan, ld. Counsel for the appellant, pleaded that declared transaction value are genuine, that there is marginal variation between the declared transaction value and the transaction value determined based on the NIDB data, that while the respondent had imported the goods, in question, in 2006, the bills of entries relied upon by the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompetitive conditions and it does not involve any abnormal discount or reduction from ordinary competitive price or any special discount limited to exclusive agents; (b) There are no restrictions as to disposition or use of the goods by the buyers other than restrictions which are imposed or required by law or by the public authorities in India or the restriction which do not substantially affect the value of the goods and (c) the buyers and suppliers are not related person within the meaning of this terms as defined in Rule 2(2) and if such relation exists, the same has not influenced the transaction value. Rule 9 provides for inclusion of the cost of certain expenses incurred by buyer, which are not included in the transaction value and also the inclusion of the cost of transport of the imported goods to the place of importation, loading and handling associated with the delivery of the imported goods at the place of importation and cost of insurance. Rule 10 A of the Valuation Rules provided for rejection of the transaction value declared under Rule 10 when the proper officer has reasons to doubt the truth or accuracy of the same and in such a case, the proper officer can condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal trade; the price is for delivery at the time and place of importation and the transaction is at arm s length in the sense that the buyer and seller have no interest in the business of each other and price is the sole consideration for sale. Interpreting the above provisions of Section 14 of the Customs Act, 1962 and the Customs Valuation Rules, 1988, the Apex Court in the case of Eicher Tractor Ltd. reported in 2000 (122) E.L.T. 321 has held that if the declared transaction value does not fall in any of the exceptions enumerated in sub-rule (2) of Rule 4 of the Valuation Rules, there is no question of rejecting the declared transaction value and determining the same under Rule 3(2) by sequential application of Rule 5, 6, 7 and 8. 6.1 Though the declared transaction value can also be rejected under Rule 10A if the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any import, for rejecting the transaction value, there must be concrete reason, not mere suspicion. In fact, Rule 10 A supplements Rule 4(2) and covers the situations not covered under Rule 4(2) e.g. declared price of some articles imported being even less than the prevaili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions as provided in Rule 4(2) of Valuation Rules are not satisfied or as per the provision of Rule 10 A material evidence to doubt the declared transaction value must be produced and only in such a situation, the burden to prove the correctness of the declared transaction value will shift to the importer and if he is not able to discharge the burden of proof in accordance with the judgment of Apex Court in case of D. Bhoomull reported in 1983 (13) E.L.T. 1546 (S.C.), the preponderance of probability in support of allegation of the transaction value not being true and correct will be treated as having been established. Mere difference between the declared transaction value and price of contemporaneous imports of similar/identical goods is not sufficient for rejecting the declared transaction value - for rejecting the declared transaction value, it must be proved with cogent evidence that the difference is due to the conditions of Rule 4(2) not being satisfied or due to existence of reasons for doubting the declared value which would justify invoking Rule 10 A. 7. In this case, we find that the department simply seeks to reject the declared transaction value on the basis of NI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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