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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 ..... em Ranjan, Adv. PER : Archana Wadhwa Being aggrieved with the order passed by the Commissioner (Appeals), vide which he has set aside enhancement of value of imported PU coated fabric, Revenue has filed present appeal. 2. We have heard Shri P.K.Sharma, ld.DR appearing for the Revenue and Shri Prem Ranjan, ld.Advocate appearing for the Respondent. 3. On going through the impugned order of the Commissioner (Appeals), we find that he has set aside enhancement of the value of imported PU coated fabric by observing that the Revenue has not advanced any argument for rejecting the transaction value, which is required to be accepted in terms of Rule 4 of Customs Valuation Rules. He has further observed that no reasoning stands given by the original adjudicating authority for enhancement of the value. There is no contemporaneous 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 withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We find that in their memo of appeal, Revenue has not advanced any such evidences to support their case. Inasmuch as, no evidence for rejection of transaction value stands produced by the authority, we find no reason to interfere with the impugned order of Commissioner (Appeals). Revenue's appeal is accordingly rejected." 6. Inasmuch as the identical appeal of the Revenue stands rejected by the Tribunal, we find no reason to interfere with the present impugned order of the Commissioner (Appeals). Accordingly following the earlier order of the Tribunal referred supra, reject the present appeal of the Revenue also. (Pronounced in the open court on 5.9.2013) Archana Wadhwa, J. Manmohan Singh, J. C/731/2007 7. I have gone through the draft order passed by the learned Member (Judicial) whereunder appeal filed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s," the mater was taken up for detailed study at Mumbai Customs. On the basis of findings of the study, letter F.No.S/26-Misc-57/2005-1111 dated 27.3.2006 was circulated by Mumbai Customs House to various ports. The Valuation of PU Coated Fabrics of various thickness was ascertained based on the major components of this item which involve the base fabric, PU coating, its quality and thickness and further finishing design. Such fixation of value has been upheld by Hon'ble CESTAT vide their Final Order No.640/2003-NB(A) dated 18.11.2003 in the matter of M/s Techno Marketing V/s Commissioner of Customs, Kolkata reported at 2004 (164) ELT (113) Tri.-Delhi) in the case of imports of loud speakers. The prices of various thickness were derived and intimated through this letter and the same are being followed at various ports 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 por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.04.07 ICD, Faridabad 3. 335620 10.04.07 Calcutta, Seaport 4. 593310 10.05.07 ICD, Tughlakabad 14. I also observe from the practice of valuation by followed by different ports, value was re-assessed and party was informed through CHA the basis thereof. Value was re-assessed in terms of Rules 5 and 6 of the Customs Valuation Rules 1988 after rejecting of transaction value. Importer voluntarily accepted rejection and subsequent enhancement and also deposited the duty without any protest. It is also on record that no request for issue of speaking order, was made by the appellants. It is also view of Board's Circular No. 90/2003-Cus dated 14.10.2003 that it is not necessary to issue speaking order in all cases whose importer agrees for enhancement of value based on higher contemporaneous value noticed in NIDB. 15. In view of above, I am convinced that sufficient evidence exists on the basis of which enhancement of value has 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 declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is agreed by both sides that the duty of Rs.4,27,236/- paid by the appellants at the time of provisional release of the goods is more than the duty payable based on the Mumbai valuation. In view of the above, the additional duty demand made cannot be sustained." 17. Similarly in the case of M/s Varun Overseas in the case of 2001 (273) ELT 271 (Tri.- Del) guidelines issued by Commissioner of Customs (Imports) Mumbai for adopting assessable value to counteract under valuation known Chinese brand goods were found acceptable. Relevant para 5 to 10 of the above decision are reproduced below for ready references "5. Countering the arguments, learned DR has submitted that the Commissioner of Customs (Imports), New Customs House, Mumbai vide their letter dated 8-9-2005 (copy enclosed) issued guidelines for the valuation of Ball and Roller Bearing. The said guidelines were issued after extensive study on the basis of inputs given by the various wings of the Department viz. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Calcutta, in case of Bipin M. Pujara V. Commissioner of Customs reported at 1999 (107) E.L.T. 298 (Cal.) observed that: "It is well settled principle of law that each and every decision of the Apex Court cannot be followed without considering the factual back ground and/or the argument advanced before it, it is always necessary to see what were the facts in the case in which the decision was given and what was the point that has to be decided." 8. The Hon'ble High Court of Calcutta had passed the above said judgment by relying upon the decision of Hon'ble Supreme Court in the case of Union of India V. Dhanwanti Devi reported at 1996 (6) S.C.C. 44. The Hon'ble High Court of Calcutta had also observed that the same decision of Hon'ble Supreme Court had also been relied upon by the Hon'ble Patna High Court in the case of Union of India V. Kasti Nath Mahto - AIR 1999 Patna 100), and by the Division Bench of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y i.e. China, assessed to duty at the rate of USD 1.60 per kg. It stands observed by the appellate authority that the appellants have not been able to produce any other contemporaneous import to show that the value adopted by them is the correct value. As such, keeping in view the commodity like ball bearings and the guidelines issued by the Commissioner and the various other contemporaneous imports, we find no reason to interfere with the impugned order of the lower authorities. 18. In view of above, it clearly comes out that enhancement of prices in eight B/Es of M/s Polyglass are rightly made and are legally valid. 19. Accordingly, I conclude that prices as enhanced by the Revenue were correct and sustainable. Accordingly, Commissioner (Appeal)'s order is un-sustainable and Appeal filed by Revenue is allowed. Manmohan Singh, J. DIFFERENCE OF OPINION Whether 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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