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TMI Blog2014 (2) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... import value available and no expert opinion or any import by another importer as is required for enhancement of the value. He has accordingly relied upon the Tribunal's decision as also upon the decision of the Supreme Court in the case of Eicher Tractors Ltd. vs. CC-2000 (122) ELT 321 (SC) for holding that the transaction value cannot be rejected without clear and cogent evidence produced by the department with regard to quality, of origin of place and time of import. Inasmuch as the department has not adduced even any iota of evidence to reject the transaction value, neither the department has shown any special relationship between the importer and the supplier, enhancement of value cannot be done. 4. Revenue in the memo of appeal, have referred to and relied upon some import made at ICD, Tughalakhbad as also at Nhava sheva. Further, it is seen that the said clearances are in respect of fabrics varying in thickness. Further, there is nothing to show that the goods are identical in quality as also in respect of import of origin place or manufacturer, etc. 5. Apart from the above, the Revenue has referred to guideline as contained in the Mumbai Customs House letter F.No.S/26-Mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Revenue in the case of M/s Polyglas Acrylics has been rejected. I do not agree with the order and accordingly record my own order. 8. While going through facts on record, it is observed that Commissioner (Appeals) has set aside the enhancement of value of imported PU coated fabric/coated fabric (Flock) on the basis of plea that Revenue has not advanced any argument for rejecting the transaction value. Further that there is no contemporaneous import and no expert opinion. 9. Learned Member (Judicial) has recorded that Department has through relied upon imports made at ICD Tughalakhbad and Nhava Sheva but comparative fabric of same thickness, identical nature, quality and origin of manufacturing place has not been taken into consideration. Reliance was placed by learned Member upon Tribunal's earlier order is M/s D.M. International - C/A/114/12-Cus dated 30.3.2012. 10. I have examined the matter under consideration is detail looking into orders-in-original(B/Es),. Commissioner (Appeal)'s order, submissions of Revenue and Respondent. Major issue for consideration is valuation of various type of fabrics such as PU Coated fabric, PUC Coated Fabrics, polyester coated fabric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... across the country as reflected in the NIDB data. For example, PU Coated fabrics of thickness 0.6 mm was assessed @ Rs.42.37 vide B/E No.768414 dated 22.5.2007 at Mumbai port. The same fabric of thickness 0.6 mm was assessed @ Rs.42.37 at ICD, Tughlakabad vide B/E 595678 dated 18.05.07 and 595548 dated 18.05.2007. Further, the same item was assessed at Nhava Sheva port also @ Rs.42.37 per meter vide B/E No.768311 dated 17.05.2007. Thereafter, it is clear that this item is assessed at various ports uniformly based on the Mumbai Customs House letter. Whenever the value is found to be low, the same is loaded on the basis of this letter as well as the contemporary imports noticed in NIDB data. In the EDI printout for ICD, TKD, it is also observed that PU Coated fabrics of thickness 0.60 mm is assessed @ USD 1 per meter in respect of different importers during the contemporary period. Further, vide B/E No. 596242 dated 21.05.2007, the appellant imported PU coated fabric of thickness 0.50 mm @ USD 0.60 per meter which was assessed @ USD 0.80 per mtr. Same item was assessed for some other importer @ USD 0.80 per meter vide B/E No. 578936 dated 15.03.2007 and vide B/E No. 583365 dated 02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made. Full details of thickness, details of Bill of entries of various ports and comparative prices have been given which clearly manifest that Revenue has rightly rejected the declared invoices value and have enhanced it based on specific NIDB Data. Further all these values have been accepted by the concerned importers without protest and duties have been discharged and deliveries have been taken. In view of clear facts, Commissioner (Appeal)'s order has no legs to stands and is not maintainable at all since that suffers from lack of examination of verifiable date of different ports. Respondent's case does not come within the fore of Hon'ble Supreme Court Judgment in the case of M/s Eicher Tractors Ltd. Reliance on Tribunal's earlier order in the case of M/s D.M. International dated 30.3.2012 does not justify rejection of Revenue's appeal as in the present case Revenue has taken all steps as required to justify the enhancements and Revenue has provided the rational basis for enhancement. 16. I have also examined the tribunal's judgments in the case of M/s Varun Overseas 2011 (273) ELT 271 (Tri.-Del) and M/s Techno Marketing 2004 (164) ELT 113 (Tri.-Del) as referred by learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner Nhava Sheva, Directorate of Valuation, Directorate of Revenue Intelligence and other. As per the guidelines, it was proposed to assess Ball Bearing (unpopular Chinese brand) at the minimum cut of price of USD 2 per kg. The value of USD 2 per kg was arrived at after taking into consideration the average cost of raw material, wastage, manufacturing cost and other charges. Subsequently, based on the feedback received from trade and views of various Customs Houses, the Commissioner of Customs (Imports), Mumbai vide their letter dated 12-12-2005 (copy enclosed) further issued revised guidelines and suggested that because of the reduction in steel prices worldwide due to increase in crude steel production in China, minimum cut off price of such bearings be reduced to USD 1.60 per kg (unpopular Chinese brand bearing). It was further proposed to review the said guidelines on quarterly basis whenever the variations in price of bearing quality steel rods is 20% or more. 6. These guidelines of Commissioner of Customs (Imports) Mumbai have been issued after deliberating upon the issue through extensive and exhaustive studies conducted with cooperation/involvement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court of Calcutta in the case of Jaya Sen V. Sujit Kumar Sarkar (AIR 1998 Calcutta 288). So following the ratio of the judgment of Hon'ble High Court of Calcutta cited supra, it was held that the decision of Hon'ble Supreme Court in case of M/s Sai Impex cited supra is not applicable in the present case. In the case of M/s Sai Impex, the issue before the Hon'ble Supreme Court was whether the manufacturer's invoice was genuine or not. Whereas in the instant case of M/s Varun Overseas, the issue is that the imports from the manufacturer and the traders are at the same price as has been found by the worthy Commissioner (Appeals) while passing his order in appeal in question. Further, there are specific guidelines issued by the Commissioner of Customs Imports), Mumbai stipulating assessment of the ball bearings of Chinese origin (unpopular brand) @ USD 1,60 per kg as already explained in proceeding paras. 9. After considering the submissions made by both the sides, we find that admittedly the Commissioner of Customs (Imports), Mumbai has issued the guidelines for adopting the assessable value of the lesser known brand Chinese brand therein. Such guidelines h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r there was basis and creditable evidence on record for enhancement of value of imports declared in respective B/Es and appeal of Revenue has merit to succeed as held by Member (Technical) Or Appeals of Revenue has no basis to sustain on valuation and is required to be rejected. Archana Wadhwa, J. Manmohan Singh, J. PER : Sahab Singh 23. I have gone through the order passed by Mrs. Archana Wadhwa, Member (Judicial) and also the order passed by Shri Manmohan Singh, Member (Technical) and difference of opinion referred to me by the President. 24. The case was listed for hearing on 18.10.2010. On that date the respondent sought adjournment by submitting letter dated 14.10.2013. Case was adjourned to 01.11.2013 i.e. today. Shri M.S. Negi Ld. DR appears for the Revenue and none appeared for the respondent. 25. Heard Ld. DR who reiterated the grounds of appeal in their appeal filed before this Tribunal. 26. In this case Commissioner (Appeal) has set aside the enhancement of the value of imported PU coated fabrics by observing that Revenue has not advanced any argument for rejecting the transaction value and no reasoning stands given by the original authority for enhancement of v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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