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TMI Blog2012 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... detention charges, is also correct - C/679 and 704/2011 - A/28-29/2011-WZB/C-I(CSTB) - Dated:- 26-12-2011 - S/Shri B.S.V. Murthy, Ashok Jindal, JJ. REPRESENTED BY : Shri Prakash Shah, Advocate, for the Appellant. Shri V.K. Singh, Addl. Commissioner, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - M/s. Stonemann Royale Ltd. (appellant) filed B/E. No. 3269397 dated 20-4-2011 seeking clearance of 911.63 sq. meters of Artificial marble - white series at a price of US$ 21.6 per sq.mtr. (FOB) and 3721.51 sq.mtr. of Artificial marble - Beige series at the price of US$ 20.8 per sq.mtr (FOB) under contract No. BY/SEL/AMS/001 dated 14-1-2008. The said contract for import of 4,98,834 sq.mtr. of different series of Artificial marble at prices ranging between US$ 16-20 per sq.mtr. was registered and accepted by Customs, Nhava Sheva in February, 2008 and a quantity admeasuring 87,284 sq.mtr. had been cleared under the contract before the DGFT changed import policy vide Notification No. 41 (RE-2008)/2004-09 dated 18th September, 2008 restricting the import of Artificial Marble priced below US$ 50 per Sq. Mtr. (CIF). The appellant s application for a relaxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was before the court, looking from the view of future business relationship and for your explanation for fulfilment of the contract in the time period, we agree to grant you two more years. The time limit mentioned in para 5.4 of our contract would now read as 4 (four) years instead of 2 (two) years, subject to your confirmation before 31st May, 2010. The learned AR submitted that according to the contract (Annexure-I) the sales value is required to be increased by 20% in he second year and a fresh contract was required to be executed. In the absence of any increase in price, he submits that the stand taken by the original adjudicating authority that the transaction value is to be rejected as in his order and since all the imports are @ 50 USD per sq. mt., the original adjudicating authority s order is required to be sustained. He relied upon the following decisions to submit that rejection has been made correctly and the value has been re-determined also correctly: - (i) Agarwal Inds. v. Commissioner of Customs, Vizag - 2006 (193) E.L.T. 421 (Tri.-Bang.) (ii) Indian Farmers Fertilizer Co-Op. Ltd. v. Commissioner of Central Excise, Bhubaneshwar-I - 2010 (252) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when contemporaneous imports were available, he was required to consider them first and only thereafter proceed to apply other rules. The learned sr. Counsel argued that import @ US$ 50 per sq. mt. cannot be considered as transaction value at all since the date the DGFT fixed the floor price, importers who were importing @ US$ 20 and less than that immediately started imports @ US$ 50. They also started declaring the price of US$ 50-51 in every Bill of Entry. Irrespective of the quality and irrespective of the grade etc, the value declared is US$ 50 per sq. mt. and as can be seen from the contract entered into between the parties themselves in this case, it can been seen that value varies from USD 16 to USD 21.5 per sq. mt. The variation on this basis in the values declared after the introduction of floor price would have been from 50 USD to 65 USD whereas in the Bills of Entry cited by the adjudicating authority in his order, except for one Bill of Entry, the price in all Bills of Entry is USD 50. In the absence of any clear finding that the declared value was the invoice value and the transaction value, under these circumstances, it cannot be said that the price of contemporaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present their case, they had shown contemporaneous evidence to show that the imports were being made at USD 20. The original adjudicating authority himself stated that the importer informed that artificial rough artificial marble slabs are being allowed to be imported at US$ 20 per sq. mt. under licences issued by the DGFT. If the DGFT had issued licences for importation @ US$ 20 per sq. mt., in the absence of any rejection of this claim made by the importer, the correctness of the claim has to be accepted. This claim has been rejected by the original adjudicating authority on the ground that this method of value is specified under Rule 8 of the Customs Valuation Rules, 2007 and, therefore, cannot be applied directly. We find that the submission made by the appellants was not application of Rule 8 of Customs Valuation Rules at all since according to Rule 8 computed value is required to take all costs such as value of materials, profit and other expenses. This means that there would be a breakup of each and every item under these headings at least when assessment of value under Valuation Rules is claimed. Another ground taken by the original adjudicating authority is that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and to ignore the transaction value without considering the submission at all was not in order. Moreover, adjudicating authority has not given his reasoning why bills of entries filed by importers with licence were not considered. 7. The discussion above would show that the Commissioner (Appeals) has rightly allowed the appeal filed by the appellants and we find no merit in the appeal filed by the Revenue and accordingly, the appeal is rejected. 8. As regards the appeal filed by the appellant for waiver of detention charges, the Commissioner (Appeals) has relied upon Regulation 6(1)(1) of Handling of Cargo in Customs Area Regulations, 2009 and has said that customs cargo service provider can be directed not to charge any rent or demurrage in respect of goods which are detained, seized or confiscated by the proper officer. We find that as observed in this case that the goods were neither seized nor detained is correct and therefore not giving any direction to the adjudicating authority for wavier of detention charges, is also correct. During the hearing it was also pointed out that the appellant had been offered warehouse facility but did not accept it. Under these circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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