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TMI Blog2013 (10) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... he value on the following grounds: (a) There was a DRI/MZU Alert dated 09.10.2012 suggesting gross undervaluation in PU and PVC coated fabrics covered under CTH 5903. (b) There was a letter dated 23.01.2013 from the Chief Commissioner of Customs, JNCH, Nhava Sheva suggesting minimum value of such goods not be less than Rs. 55/- per meters, (c) On cost construction method, the unit value for goods of thickness 0.55 mm was Rs. 58.60/Kgs and for goods of 0.45 mm the declared value works out to Rs. 80.4/Kgs. For the cost construction method the material composition of previous test report was taken. On the basis of minimum value of polyester yarn @ 1.7 USD/kgs, USD 1/Kgs ov PVC resin and USD 1.5/kgs. (d) Although the consignments of the importer are sourced from China and its main Director, Shri Pawan Kumar Kaushik is a NRI based in Taiwan since last 25 years. 4. Accordingly, the value of the consignments was loaded by the lower adjudicating authority. Aggrieved by the same the appellants filed appeal before the same, the appellants filed appeal before the learned Commissioner (Appeals) who vide his order NO. 359(CFS/Mulund)/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.32, 26.91, 31.23, 32.25, 44.20, 45.82 and 54.48 etc with average assessed price of Rs. 40.62. When department are assessing B/E even after loading at Rs. 24.32/mtr means they are not following this letter or accepting that their item is not same. 5.6 The contention is that the learned Commissioner (Appeals) has given only one reason for upholding the rejection of the assessable value in terms of Rule 12 is that adjudicating authority has given cogent reasons. However, the explanation or submissions made by the appellants on these cogent reasons have not been considered by the Commissioner (Appeals). The learned Commissioner (Appeals) has observed in para 5.1 of the impugned order that even if evidence for showing the accuracy of the declared transaction value is shown, the declared value will be rejected if any of the premise in terms of Rule 5 exists. The contention is that none of the premises as contemplated under Rule 12 exists in the instant case of the appellants. 5.7 So far as contemporaneous import is concerned the department has relied upon 26 Bills of Entry. The contention is that ++ Seven Bs/E have been repeated. ++ Two Bs/E cannot be fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved was also with them because Polyester content was lower in that means less Fabric weight and more Re-cycled PVC, means it will cost less than declared price so they took T/C report of difference item which is not in question. 5.10 The contention is that when the asessable value is being re-determined in terms of Rule 5 of the Customs valuation Rule, Rule 9 of the Customs Valuation Rules, 1988 is not invokable by the department. Rule 9 of the Customs Valuation Rules is invokable only when the assessable value cannot be re-determined in terms of the various methods as outlined in Rule 4 to 8 of the Customs Valuation Rules, 2007. They placed reliance on Milton Plastic vs. Commissioner of Customs- 2006 (204) ELT 497 (Tri-Mum). 6. The learned A.R. appearing for the Revenue contended that the transaction value has been rejected with cogent reasons and contended that contemporaneous import of similar goods was found to be higher. 7. We carefully considered the submissions made by both the sides and perused the records. 7.1.1 This valuation in Customs is governed as per Section 14 of Customs Valuation Rules, 2007. Section 14 provides that: (1) For the purpose of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are concerned more with a preponderance of probability rather than proof beyond reasonable doubt." The learned Commissioner (Appeals) upheld the lower adjudicating authority order by holding that all requisite ingredients of similar goods are present in the goods sought to be compared with that of appellant and the re-determined value is also in consonance with the value calculated on the basis of cost construction method. The lower authorities rejected the value in terms of Rule 12 on the grounds enumerated in para 3 (supra). 7.2.2 Rule 12 does not automatically empowers the Assessing Officer to reject the transaction value. It does not per se provide method for determination of value. It only provides for mechanism and procedure for rejection of declared value which is clear from explanation to the Rule reproduced here-under:- Explanation- (1) For the removal of doubts, it is hereby declared that- (i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of rule 3, the value of imported goods shall be the transaction value of similar goods for export to India and imported at or about the same time as the goods being valued: Provided that such transaction value shall not be the value of the goods provisionally assessed under seciton18 of the Customs Act, 1962. (2) The provisions of clauses (b) and (c) of sub-rule (1), sub-rule 92) and sub-rule (3), of rule 4 shall, mutatis mutandis, also apply in respect of similar goods. 7.3.2 The provisions referred in sub-Rule (2) to Rule (5) are reproduced here-in-under:- Rule 4 (1) (b) In applying this rule, the transaction value of identical goods in a sale a the same commercial level and insubstantially the same quantity as the goods being valued shall be sued to determine the value of imported goods (c) where no sale referred to in clause (b) of sub-rule (1), is found, the transaction value of identical goods sold at a different commercial level or indifferent quantities or both, adjusted to take account of the difference attributable to commercial level or to the quantity or both, shall be used, provided that such adjustments sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (iv) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values; 7.4.2 Rule 9 is provides for residuary method and further the Rule 3(4) provides that if the value cannot be determined under the provisions of sub-rule (1), the value shall be determined by proceeding sequentially through rule 4 to 9. 7.4.3 In this manner Rule 9 cannot be resorted to unless the value cannot be re-determined under Rule 4 to 8. If value is determined under Rule 5 then there is no need to resort to Rule 9 even if value is determined under Rule 9 the same has to be done by reasonable means consistent with the principle and general provisions of these Rules on the basis of data available in India and if, the department has taken recourse to Rule 5 as reasonable means, that has not been spelled out. 7.5 In the instant case the department could not show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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