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TMI Blog2013 (8) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... ptions in Rule 4(2), there is no question of determining the value under the subsequent Rules – Decided in favor of assesse. - C/905/2009-Mum - A/544/2012-WZB/C-I(CSTB) - Dated:- 11-6-2012 - Shri Ashok Jindal and P.R. Chandrasekharan, JJ. Shri L.P. Asthana, Advocate, for the Appellant. Shri S. Dewalvar, Addl. Commissioner (AR), for the Respondent. ORDER This appeal is directed against order-in-original CAO No. 96/2009-CC/(1)SHH/Gr.VA, dated 8-6-2009 passed by the Commissioner of Customs (Import), New Customs House, Mumbai. 2. The appellant M/s. Jindal Poly Films Ltd., New Delhi, had imported one unit of second hand old and used Nylon/Polyester Filament Yarn Plant of German origin from USA in December, 2002 and filed two Bills of Entry bearing No. 318236 and 318237 both dated 13-12-2002 and declared the value of goods as Rs. 9,14,05,204/-. The goods were examined on 1st check basis and were found to be consisting of 18 lines; 15 lines of 96 ends with 24 positions each for 4 ends and 3 lines of 144 ends with 24 positions each for 6 ends. The machinery was of Barmag Germany make and was imported on as is where is basis and was not reconditioned. The plate marki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conversion rate of 1 DEM = Rs. 18.25. The department also made efforts with M/s. Garden Silk Mills, Surat, who imported old high speed spinning mills from Germany and China from M/s. Barmag AG, Germany in December 2003 to April, 2004 under four Bills of Entry wherein the value per line worked out to Rs. 1 Crore per line on an average. 2.2 On the basis of these evidences, a show-cause notice dated 2-1-2009, was issued to the appellant proposing finalization of the provisional assessment of the imported plant adopting the value of Rs. 19,60,74,500/- under Rule 8 of the Customs Valuation Rules, 1988, and demanding differential duty of Rs. 81,66,248/- under the provisions of Section 28(1) read with Section 18(3) of the Customs Act, 1962 along with interest thereon under Section 28AB ibid. It was also proposed to confiscate the goods under Section 111(m) of the Customs Act, 1962, on the ground that the appellant importer did not declare the correct value of the goods under importation, thereby making the goods liable to confiscation. The case was adjudicated vide the impugned order and the differential duty demand was confirmed. The goods were confiscated with an option to redeem the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 991 wherein the total value has shown as US $ 3,34,000. The said Bills of Entry did not indicate the number of lines supplied and ends per each line. However, the importer s Engineer orally indicated that the aforesaid import covered two lines. Accordingly, the value per line worked out to Rs. 80 lakhs. Thereafter, on the strength of the proforma invoice produced by the importer in respect of the imports made by Hindustan Pipe Udyog, the cost of one line of 128 ends was arrived at US $ 2,77,000. For one line of 96 ends, the value arrived at on pro rata basis worked out to Rs. 1,00,55,100/- and Rs. 1,50,82,650/- for one line of 144 ends. In those cases, the year of making of the machinery could not be ascertained and it was assumed that the goods could not have been manufactured before 1984. It was on this basis, the assessment was resorted to in respect of the goods under importation. The Expert Group also recommended that the value of contemporaneous imports should be ascertained for assessment purposes. Thereafter, the department conducted various investigations and could not get any reliable evidence worth the name even after a lapse of a period of almost 10 years and a show-cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision (P) Ltd. - 2007 (214) E.L.T. 3 (S.C.) and Venus Insulators - 2003 (153) E.L.T. A172 (S.C.). The findings of mis-declaration on the part of appellant is based on three pieces of evidence i.e. (1) price of plant imported in the year 1991 by M/s. Hindustan Pipe Udyog; (2) the letter of M/s. Saurer India Pvt. Ltd.; and (3) imports made by M/s. Garden Silk Mills from December, 2003 to April, 2004. No reliance can be placed on the price declaration in the Bills of Entry of M/s. Hindustan Pipe Udyog where the make or the year of the manufacture of the machine was not known and, therefore, the comparison cannot be made between two un comparable goods. The letter of M/s. Saurer India Pvt. Ltd., cannot be relied upon for the reason that it refers to price of components and not price of the plant/machinery. Further, the prices vary considerably depending upon the year of manufacture, advancement in technology, make, model, the condition of the machinery and other factors. As regards the Bills of entry filed by M/s. Garden Silk Mills, those consignments have been imported from China and those were also provisionally assessed and there is no evidence that the said bills were finally ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Valuation Rules onwards and determine the value for the purpose of levy of duty. In the light of these decisions, the learned AR prays for upholding the findings of the adjudicating authority. 5. We have carefully considered the rival submissions. 5.1 The basis for re-determination of value is the value of similar goods imported by M/s. Hindustan Pipe Udyog vide four Bills of Entry filed in December, 1990 to June, 1991. In that case the total value of goods was US $ 5,54,000 and the import consisted of two lines of 128 ends each. Therefore, the cost of one line of 128 ends worked out to US $ 2,77,000/- and on that basis cost of one line of 96 ends worked out to (on pro rata basis) US $ 2,07,750/- and cost of one line of 144 ends worked out to US $ 3,11,625/-. Adopting the exchange rate of Rs. 48.4 per Dollar, value in Indian Rupees amounted to Rs. 1,00,55,100/- for one line of 96 ends and Rs. 1,50,82,650/- for one line of 144 ends. It is on this basis the learned adjudicating authority has re-determined the value. There is no indication what-so-ever in the said report of the Expert Group as to the make and model of the goods imported by Hindustan Pipe Udyog, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spection Certificate of an independent Chartered Engineer. The genuineness of these documents have not been disproved at all. Therefore, the department has not made out any case for rejecting the transaction value under Rule 3(2)/4(2) of the Customs Valuation Rules, 1988. 5.3 The Hon ble Apex Court in the case of South India Television Pvt. Ltd. (cited supra) held as follows :- However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14(1A) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Under-valuation has to be proved. If the charge of under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia : (i) Price of new machinery as in the year of its manufacture, (ii) Current CIF value of new machinery if purchased now, (iii) Year of the manufacture of machinery, (iv) Sale price of the supplier, (v) Present condition of machinery, (vi) Nature of reconditioning or repairs carried out, if any, and the cost (including the dismantling cost, if any) thereof, (vii) Expected life span. (b) There is no need to specify the agencies whose certificates alone, issued at the port of loading, would be accepted. The number of such agencies should not be limited. (c) In the absence of proper Load Port Certificate, a local Chartered Engineer s Certificate may be accepted. Each Custom House may consider issuing Public Notices giving names and addresses of Chartered Engineers, whom the trade can contact for issuance of CE Certificate. (d) It is not essential to have the examination of the second hand machinery by a panel of officers, since in many Customs formations no machinery expert is posted. The routine examination of second hand machinery being done by the Docks staff shall continue. 5.5 In the instant case, we find that the appellant importer had satisfied all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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