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TMI Blog2012 (11) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... e given to cross-examine the persons who have given the data for the valuation - No reason has been cited as to why the value of the contemporaneous import is rejected and there was no reason cited doubting the value furnished - order set aside and appeal allowed - C/1254/2009 - A/3/2012-WZB/C-I(CSTB) - Dated:- 15-12-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri Satish Sundar, Advocate, for the Appellant. Shri Y.K. Agarwal, Addl. Commissioner, for the Respondent. [Order per : Ashok Jindal, Member (J)]. This appeal is preferred by the appellant against the impugned order wherein the value of the imported consignment has been re-determined at Rs. 22,19,319/-; and the three items branded with Dove valued at Rs. 7,92,172/- are absolutely confiscated and the remaining items also confiscated as the goods had already been released under bond, redemption fine of Rs. 3.5 lakhs is also imposed which are directed to be recovered through bank guarantee executed by the appellant. 2. The brief facts of the case are that the appellant imported a consignment of perfumes, deodorant, cosmetics and toiletries and filed Bill of Entry No. 713116 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another Bill of Entry No. 713117 was filed having the same type of items. In that consignment also there are three items under the brand name of Dove which were released without invoking the provisions of IPR Act or Rules. Therefore, discrimination was done with the appellant. He finally submitted that the valuation arrived by the adjudicating authority is also not correct as it was not disclosed, as to how the market survey was done and, further, no opportunity of cross-examination was given to the appellant of the persons whose statements were recorded to ascertain the market value of the goods. In support of his contention, he relied on the following judgments : (i) M/s. Landom Distributors Pte. Ltd. (Writ Petition No. 8937 of 2011 dated 1-12-2011 Madras H.C.); (ii) Consolidated Mfg. Mktg. Co. v. Commissioner of Customs, New Delhi - 2009 (238) E.L.T. 811 (Tri.-Del.); (iii) IS. Lulla v. H.R. Syiem, Asstt. Collector of Customs - 2000 (125) E.L.T. 23 (Bom.); (iv) Durga Marketing v. Commissioner of Customs, Mumbai - 2002 (139) E.L.T. 107 (Tri.-Mumbai); (v) Commissioner of Customs, Mumbai-II v. Hakim Hardware General Stores - 2001 (129) E.L.T. 650 (Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic mode of the suspension of clearance of the goods and shall state the reasons for such suspension. (3) Where clearance of the goods suspected to be infringing intellectual property has been suspended and the right holder or his authorised representative does not join the proceedings within a period of ten working days from the date of suspension of clearance leading to a decision on the merits of the case, the goods shall be released provided that all other conditions of import of such goods under the Customs Act, 1962, have been complied with : Provided that the above time-limit of ten working days may be extended by another ten days in appropriate cases by the Commissioner or an officer authorized by him in this behalf. (4) Where the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, has suspended clearance of goods on his own initiative and right holder does not give notice under Rule 3 of the Rules or does not fulfil the obligation under Rule 5, within five days from the date of suspension of clearance, the goods shall be released provided that all other conditions of import of such goods under the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod under sub-rule (6), as the case may be, and within three working days or the extended period as provided in sub-rule (7) of this rule in the case of perishable goods, the right-holder or his authorized representative joins the proceedings, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, having reasons to believe that the goods are goods infringing intellectual property rights and liable to confiscation under Section 111(d) of the Customs Act, may seize the same under Section 110 of the Customs Act. 9. We find that, as per the said Rules, the right holder had to give a notice in writing to the Commissioner of Customs at the port of import of goods infringing IPR, in accordance with the procedure and under the condition as set out in these rules, requesting for suspension of goods suspected to be infringing IPR. The right owner has to get registered with the Commissioner of Customs within 30 working days from the date of receipt of the notice under Rule 3(1) and from the date of expiry of the extended time as contemplated under Rule 3(4). Further, as per Rule 7(3) where the clearance of the goods suspected to be infringing the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the transaction value and, thereafter, they have to resort to the procedure prescribed in the Customs Valuation Rules. As per Rule 5 of the Customs (Valuation) Rules, 2008, the absence of data about the sale price of the imported goods is no excuse for the department to rely on incomparable goods as this would lead to absurd result. In this case, we have seen that the goods were assessed after loading the value and, thereafter, re-enhancement has been done. Section 14(1) of the Customs Act provides for determination of value of such goods or like goods ordinarily available for sale, at the time and place of importation. In this case, it is seen that the method of valuation and market survey is not proper and no opportunity to the appellant were given to cross-examine the persons who have given the data for the valuation. As per Bill of Entry No. 713117 filed on the same day by another importer, the data was available for the contemporaneous import of the said goods and, therefore, [not] following the same amounts to discrimination with the appellant. No reason has been cited as to why the value of the contemporaneous import is rejected and there was no reason cited doubting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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