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TMI Blog2013 (9) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively. 2. The cargo was examined under 1st check in the presence of representative of the importer, team of SIIB officers and Customs officers on 28.04.2011. During examination of the footwear, it was observed that the same were branded; that no MRP was found on 300 pairs of unbranded Ladies slippers; and that no MRP was found on most of the Gents footwear. Further, examination of the socks revealed that the same were of 'Sport' brand, while examination of the Batteries revealed the same were of Maxell / Sony etc., brand and most of them were made in Japan as against the claim of the importer of being China origin. 3. It was also found that the value of the above said goods declared by the importer was grossly undervalued as compared to NIDB data. The importer had not declared the brand, make, model and country of origin of the goods. The importer sought waiver of show cause notice vide their letter dated 11.05.11 and sought personal hearing before the adjudicating authority. The adjudicating authority after giving the personal hearing, passed the impugned order rejecting the value of above said goods declared by the appellant under Rule 12 of the Customs Valuation (Deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us imports of such or similar goods. That Hon'ble Tribunal also in the case of Jai Industries vs. CC, reported in 2006 (193) ELT 218 held that if the country of origin is different but rate of duty is same, confiscation was not warranted. In the instant case also, the lower authority has not given any finding that there was some difference in rate of duty between the goods having country or origin as China or as Japan. c. That it was only on the basis of NIDB Data that the lower authority had come to the conclusion that the imported goods were undervalued and value of all the goods were enhanced to almost 7 times without any concrete evidence. Hon'ble Tribunal in the case of CC vs. Sita Trader reported in 2010 (262) ELT 917 upheld the orders of appellate authority quashing the orders of original authority which was solely based on NIDB Data. Similar decisions of Tribunal in the case of CC vs. K D Exports, reported in 2008(227) ELT494 and in the case of CC vs. Prem Enterprises reported in 2010 (246) ELT 399 are also relied. d. That in respect of ladies footwear/chapel, the value was enhanced for the reason that the value was grossly undervalued by putting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be enhanced on the basis of availability of assessable value of Identical goods. The authorities below have not referred to the fact that the value as available in terms of NIDB is in respect of the same goods which stand imported by the appellant. It is well settle law that for adopting the value of other imported goods, the same have to be matched in terms of Country of original, time of import, quality of goods and quantity of goods. No such effort seems to have been made by the lower authorities and no such comparison is available on record. The appellant have claimed that the batteries were procured on stock-lot basis. The said plea of the appellant does not stand rebutted by the Revenue, by production of evidence to the contrary. Further, we find that apart from enhancing the value on the basis of NIDB Data, no evidence stand produced on record to reject the invoice value. Further, there is no allegation or evidence to show that the importer has made extra payment to the foreign supplier, in addition to the value reflected in the invoice. As such, we find no justifiable reason to uphold the impugned orders. The same are accordingly set aside and appeal is allowed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0000 pieces with the exception of one type were the number was 9200. There is nothing to indicate a transaction of goods for stock lot available. In respect of 50000 Sony batteries (out of 1511200 batteries imported) there is an argument that the goods were packed in trays and not in strips. For the rest of the batteries the consignment looks like any other normal import of goods by a trader. Goods which are not in stock lot cannot become stock lot if a foot ware items are imported along with it. Against such back ground facts there is no reason to consider the batteries imported as stock lots or for allowing an appeal challenging the increased value assessed at the time of import based on increased values accepted by the importer at the time of import in the case of batteries. In the case of other items like ladies foot wear, gents foot wear, socks and baby optical frame it is difficult to compare goods and assess value of such goods by comparing it with value of similar goods imported by other importers. So the benefit of doubt can be given to the importers. 12. At this stage I would like to examine the case laws relied upon by the appellants to see its relevance 12.1 Sellers M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raneous imports were disclosed. The appellant at that time chose not to seek any further details about the contemporaneous imports but accepted the increased value. The totality of facts and conduct of parties have to be taken together rather applying isolated sentences from different decisions to facts of one case to legalize a position that import of such goods at any price is acceptable once it is brought to Tribunal Level. 12.2 JAI INDUSTRIES Vs CC-2006 (193) ELT 218 12.2.1 I have read this order thoroughly. The order nowhere states that the goods cannot be confiscated under section 111(m) of the Customs Act for mis-declaring the country of origin, so long as rate of duty for import from the two countries are the same as canvassed by the appellants. 12.2.2 In fact I find that the importer in that case argued that the country of origin is a material particular relevant for determining value of goods and his main defence was that. So I do not understand how the country of origin is not a material particular relevant for determining value specified and not applicable for the purpose of section 111(m). 12.3 CC Vs. SITA TRADERS-2010 (262) E.L.T. 917 (Tri. - Del.) 12.3.1 In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of any enhancement of the value for reasons already recorded by me. 13. Before I conclude it is necessary to discuss the decision of Apex Court in the case of Eicher Tractors Ltd. v. CC, Mumbai reported in 2000 (122) E.L.T. 321 which is relied upon to decide cases of undervaluation of imported goods. The first two paragraphs of the decision are reproduced below: "M/s. Eicher Tractors Ltd., the appellant before us, manufacturers tractors and tractor engines in India. From 1955 the appellant imported bearings of a specific size for their tractors and tractor engines from M/s. NTN Corporation, Osaka, Japan. This 33 year relationship was snapped in 1988 when the appellant started utilising bearings manufactured for them in India by M/s. HMT Ltd. The Japanese vendor was left with a stock of the bearings which had been manufactured by it for the appellant anticipating the appellant's continued custom. Not finding any customer for the bearings, by letter dated 12th February, 1993 the vendor's agent in India offered to sell the 1989 stock of 3579 bearings to the appellant at a price of Japanese Yen (JY) 826 per piece. The appellant found the offer compe ..... 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