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TMI Blog2013 (10) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.06 USD per dozen (Rs.0.226 per piece). On the basis of NIDB data available with the department in respect of batteries of Japan origin, the department loaded its value to Rs.4 per piece. The lower authorities have applied the NIDB data after taking the lowest value of identical or similar goods found during the relevant period. No infirmity in respect of applying NIDB data to the batteries imported by the appellant - Decided against the assessee by majority decision. - C/609/2011-CU[DB] - - - Dated:- 5-8-2013 - Archana Wadhwa And Mathew John , JJ. For the Appellant : Sh Rajesh Chibbar , Adv . For the Respondent : Sh V P Batra , DR PER : Archana Wadhwa The brief facts of the case are that the appellants filed a Bill of Entry No.2780 dated 21.04.11 in respect of clearance of their import of 9335 pairs of Ladies footwear, 1368 pairs of Gents footwear, 10100 Dozen of Socks, 125933.31 Dozen of Watch Battery 4000 pieces of Baby Optical Frame, falling under RITC No.64059000, 64041910, 61159990, 85068010 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. APL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. That the batteries involved in the instant case were purchased on stock lot basis and there was no material difference between the price of such type of batteries imported from China or Japan. Further, the manner in which the NIDB Data was applied is sufficient to show that the department had made up its mind to enhance the value 7 times irrespective of the fact that the goods imported were of different types. They were altogether different from each other in all respects. For example, ladies belly, baby optical and watch batteries were some of the goods imported. Therefore, the department has enhanced the price in mechanical manner. A perusal of examination report show that there was no mention of country of origin against sl. no.10,11,12,13,14,15,16,22,24 27 and against sl. no. 24 25 the country of origin was mention as China, whereas the department still enhanced the value of 7 times in respect of batteries mentioned at such serial numbers. That the average market price of similar goods is around Rs. 0.50 to 3.50 only 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en any findings over the same. The adjudicating authority has made observations regarding the applicability of NIDB Data in respect of Watch Batteries, Ladies Footwear, and Gents Footwear while no observations are made at all in respect of socks. When no discussions are made in the impugned order in respect of socks, the same could neither be confiscated nor subjected to enhancement of value. Similarly, no findings have been given in respect enhancement of value of baby optical frames. f. That adjudicating authority has not satisfied the conditions for invoking the provisions of Rule 9 of the Valuation Rules. 5. The commissioner (Appeals) however, did not find merits in the above appeal of the appellant and rejected the same. He observed that the adjudicating authority was within its right to reject the assessable value and to determining the same under Rule 9, after giving reasonable flexibility. However, he reduced the penalty to Rs. 3 ,43,000 /- the said order of Commissioners (Appeal) is impugned order before us. 6. We have heard both the sides and have gone through the impugned orders. It is seen that lower authorities have enhanced, the value on the basis of NIDB Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r importers. 9. The appellant had declared goods under four items in the bill of entry. The case made out in respect of the four items can be quantified as under: S.No . Description Quantity Assessable Value declared in Rs. Value Assed by Dpt 1 Ladies Footwear 9335 pair 316015 599610 2 Gents Footwear 1368 pairs 63155 194400 3 Socks 121200 pairs 186047 302400 4 Watch Battery 125933.31 dozen 390423 5702800 5 Baby Optical Frame 4000 pieces 36933 60000 10. As may be seen from above tabulation the valuation dispute was mainly for batteries where the value has been loaded almost 14.6 times for all batteries taken together. The value for all items of battery (12V, 3V, 1.55V) was declared as 0.06 US$ per Doz that is about Rs. 0.226 per piece. The department has loaded it to Rs. 4 per piece for the items which were imported in maximum 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the consignment was determined as Rs. 22,85,450/- CIF as against the declared value of Rs. 2,85,054/-. 12.1.2 The finding of the Tribunal given in para 8 are reproduced below: "8. The appellants, in the preamble to the statement dated 6-10-2008, had stated that the goods imported vide Bill of Entry No. 894061/1-7-08 were bought by him as stock lot from Veropam , Paris. This was repeated by him in response to the Question No. 2 and Question No. 7 in the said statement dated 6-10-2008. He also filed the letter dated 23-6-2008 from the shipper to the effect that the goods are stock lot. We observe that no findings have been recorded by the Commissioner in this regard. Manufacturer's price, wholesale price, retail price, auction of stock lot, etc. represent the different commercial levels of sale transactions. In the instant case, the goods were bought by the overseas shipper in an auction and sold to the appellants on stock lot basis. Hence, the auction price cannot be compared with the price of the impugned goods in the Indian market, as was done by the Department. It is settled principle as enunciated by the Hon'ble Apex Court in Eicher Tractors Ltd. v. CC, Mumbai report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot inclined to interfere with the order passed by the learned first Appellate Authority. Accordingly, all the three appeals of Revenue are rejected." 12.3.2 From the above paragraph it is very clear that this order was very specific to the facts of the case and it cannot be applied to facts of any other case. I also note that this is a case where the First Appellate authority had given relief and Revenue had come in appeal. 12.4 CC Vs . K.D. EXPORTS - 2008 (227) E.L.T. 494 Tri. - Del.) In this case the goods imported were Polyester fabrics. This is not an item where the quality of goods in one consignment can be compared with quality of goods in another consignment unless both are seen simultaneously. Nothing derives from the fact that this case was decided against Revenue 12.5 CC Vs PREM ENTERPRISES-2009 (246) E.L.T. 399 (Tri.-Del. ) In this case 22,600 pieces of Sealed Acid Batteries were imported from China and filed bill of entry No. 989 dated 9-9-05 was filed. The assessing officer enhanced the value. It is seen from the order that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant by the vendor was not normal and could not be accepted for the purpose of determining the price of the bearings under Section 14 of the Customs Act, 1962 and Rule 4 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (referred to briefly as the 'Rules'). The Assistant Commissioner determined the price of the bearings at JY 2507 per piece under Rule 8. In arriving at this figure, the Assistant Commissioner took the list price of the vendor and deducted 30 per cent on account of discount, which, according to the terms of agency between the vendor and its Indian agent, was the maximum permissible discount allowable." 14. The facts as recorded above clearly shows the reasons why the goods were sold at a very low price to the importer. It is very obvious that any observation made against such background facts cannot be applied to import of Sony brand batteries by a trader at a ridiculously low price at which goods are not available to anyone except to the appellant and prices which can be prevail only in case laws. The fact that such goods are imported along with footwear or baby opticals cannot make it a consignment of odd lot and justify the artif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Rules. She has observed that while adopting the value of other imported goods in terms of NIDB data same has to be matched in terms of country of origin, time of import, quality and quantity of the goods in respect of import of batteries. She has observed that plea of the importer that batteries were imported on stock lot basis has not been rebutted by the department by production of any evidence to the contrary and accordingly she has set aside Order-in-Appeal. 23. On the other hand, Member (Technical) in his order has observed that the reasoning given by the appellant for the low prices of the batteries on the ground of stock lot is not acceptable as there are about 15 lakhs batteries of assorted specifications. He has observed that the goods which are not in stock lot cannot become stock lot if these are imported along with other items like footwear, socks and baby optical frame. He has also held that there is no reason to consider import of the batteries in stock lot as at the time of import the increased value was accepted by the importer in case of batteries. 24. None appeared on behalf of the appellant despite notice. There was no appearance on behalf of the appellan ..... 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