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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 ..... 90031900 respectively. The Country of origin of the cargo was declared as The People's Republic of China'. The goods were imported under Bill of Lading No. APLU053624527 Dt. 31.01.2011 and invoice No. HF 110127 dtd. 31.01.2011. Total assessable value of import was declared at Rs. 9,92,573/-. Exemption of Additional Duty of Customs was claimed on Ladies footwear Gents footwear on the basis of embossed MRP on the footwear as Rs. 150/- 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 NID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the Indian market. b. That the Hon'ble Tribunal in the case of Sellers Men vs. CC, reported in 2009(248) ELT 338 held that stock lot price cannot be compared with price of similar goods in Indian market. Further, the CESTAT in the case of Crystal Dot Scan P. Ltd. reported in 2001(263) E.L.T 401 held that if the department wants to reject the value of imported goods, it should establish details of contemporaneous 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 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the sides and have gone through the impugned orders. It is seen that lower authorities have enhanced, the value on the basis of IMIDB Data. Commissioner (Appeals) has upheld the order on the ground that Custom authorities have the power to enhance the value in terms of the provision of Rule 9 of the Valuation Rules. However, we find no dispute with the above observation. But value 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imum quantity. The other items were valued at Rs.0877 per piece which value was increased to prices in the range of Rs. 2 to Rs. 8 per piece. The values declared by the importer are indeed unbelievably low. 11. The reasoning given by the appellant for low prices is that the goods were stock lot. There were about 15 lakh batteries of assorted specifications. Though in respect of other items the quantities may indicate odd lots, as far as batteries are concerned there is nothing odd about the number of pieces supplied. They are mostly in multiples of 10000 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done by the Department. It is settled principle as enunciated by the Hon'ble Apex Court in Eicher Tractors Ltd, v. CC, Mumbai reported in 2000 (122) E.L.T. 321 that old stocks may be sold by the vendor at a discount." 12.1.3 Since this was a case were value was increased almost 10 fold without having the price of any contemporaneous imports, the decision is not relevant to the facts of the present case because there was mis-declaration of country of origin of batteries. So an enquiry about the value was justified and details of contemporaneous 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of enhancement of value was not disclosed to the importer. 12.6 VIACOM ELECTRONICS PVT. LTD. Vs CC-2003 (156) E.L.T. 501 (Tri. - Mumbai) and Fair Deals Corporation- 2007(218) ELT 319 The above cases are on the issue whether MRP of goods is to be fixed on the goods before the goods leave factory abroad or whether such values can be fixed after its importation into India. This issue is not germane to the dispute at hand particularly because in the case of foot wear and baby opticals I am also not in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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