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TMI Blog2014 (10) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority to reject the price of the contemporaneous imports. Further no evidence except the statement of the proprietor has been brought on record for flow of money by the appellant. It is settled law that when the price of the contemporaneous import is available then the least of the same is to be adopted as transaction value. We have examined all the contemporaneous imports made by other importers during the import period which shows that description as shown by the appellant and all the imports are more or less of the same value. Therefore, impugned order is not sustainable in the eyes of law - decided in favour of assessee. - C/498/2010-Mum - Final Order No. A/309/2013-WZB/C-I(CSTB) - Dated:- 26-2-2013 - Shri Ashok Jindal and S.K. Gaule Shri Uday Joshi with Paritosh Gupta, Advocates, for the Appellant. Shri V.C. Khole, Dy. Commissioner (AR), for the Respondent. ORDER [Order per : Ashok Jindal (J)]. - Heard both sides. The appellants are in appeal against the impugned demand of customs duty of ₹ 1,90,47,614/- along with interest and equivalent amount of penalty imposed on them. 2. Facts of the case are as follows :- 3. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 150 Micron Spangle Film 1.30 5.15 The Department has relied upon e-mail dated 18-12-2007. This e-mail was an offer received from M/s. DAE HA Industrial Co., Korea. 5. 19-2-2008 to 18-3-2008 Sr. Nos. 21 to 23 of annexure to SCN 150 Micron Spangle Film 1.50 5.15 6. 7-4-2008 to 9-4-2008 Sr. Nos. 24 25 of annexure to SCN 150 Micron Spangle Film 1.50 3.58 The Department has relied upon e-mail dated 25-3-2008, which was an offer received from M/s. Wenzhou Hongda Laser Picture Co. Ltd., China. 7 28-5-2008 to 3-7-2008 Sr. Nos. 26 to 28 of annexure to SCN 150 Micron Spangle Film 1.50 4.86 The Department has relied upon e-mail dated 10-5-2008, received from Kamhan Industrial Ltd. Hong Kong. 3.1 The transaction value declared in the Bills of Entry has been rejected on the ground that the appellant s father and brother were based in Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the chart itself, the value adopted by the department varies from USD 1.3 to USD 5.15 per Sq. meter, which is much more than 2.5 USD indicated by the proprietor. It is quite clear that in this case no transaction value has been determined and the Commissioner in the impugned order also has accepted that the transaction value could not be determined and the value has been determined following the best judgment rule which is the last rule. We have already seen that the transaction value could not be determined and could not have been determined. Under these circumstances, once transaction value cannot be determined, the next rule to be followed is to determine the value on the basis of contemporaneous import. Even though, this issue was argumented vehemently by the defence to show that there were 100 of imports during the period and all the importers had adopted the same value. Revenue has chosen to select one importation by M/s. Sunflower Embroidery Pvt. Ltd. on 12-12-2006 to determine the value of the goods imported by the appellant during the period from 19-7-2006 to 6-12-2007. 3.2 To this, Revenue s contention was that the value was not determined on the basis of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion value on the above flimsy ground, more so when as per appellant s information no proceedings have been initiated by the department against other s transaction value which have been accepted by the department and in fact as stated above, the adjudicating authority has itself accepted the said fact of contemporaneous imports. 4.1 It is further submitted even after detailed statement of contemporaneous imports, the appellant had, while furnishing the details, requested the adjudicating authority to call for details of contemporaneous imports and for necessary verification of details furnished by the appellant. This was especially in view of the fact that once transaction value cannot be determined, as per the next rule, the value has to be determined on the basis of contemporaneous imports. In spite of this, no independent details of contemporaneous imports were called for by the adjudicating authority. In fact, after passing the impugned order the appellant had received data of contemporaneous imports under Right to Information Act. The data received under the said Act clearly supports the say of the appellant. 4.2 Despite this fact, enhancement at US$ 4.50 has been made fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the proprietor; additional amounts had been transferred by the appellant taking help of father and brother of the proprietor; the actual specification of the film was not declared by the appellant under Bills of Entry and even though the grades, colour, price, thickness were not indicated. The impugned goods are sensitive commodities with respect to valuation and are prone to gross undervaluation across most of the ports; the rates depend heavily on grade, colour, thickness etc. It was on this ground that the contemporaneous imports were rejected and the Commissioner resorted to the last rule of Valuation Rules. 6. We find that the Commissioner has not been able to justify his valuation under best judgment rule in view of the following : (a) The appellants obtained information about several consignments imported from China during the relevant period and submitted the details, which show that in all the imports, the declaration was spangle film and in many cases the grades were not declared properly. On going through the details of import submitted by the appellant, it becomes quite clear that in spite of observation of the Commissioner that the goods were sensitive of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis even to arrive at the value on the basis of best judgment rule and it could not have been passed on the statement of proprietor since the value adopted is more than 4.5 USD whereas as it emerged during the hearing, the actual value indicating by the proprietor was about 2.5 USD per kg at the lowest i.e. 33 USD for 500 meters. If that be the position, obviously calculation of more accurate aspect for determination of value was the contemporaneous Bills of Entry filed by M/s. Sunflower Embroidery Pvt. Ltd. and the e-mail offers, whereas the price is more than 4.5 USD. 7. As regards the e-mail offers, price/value cannot be determined on the basis of offer. As regards contemporaneous import, it is settled law and as per Valuation Rules also, when contemporaneous import are considered and country of origin is to be same, the supply quantity should be comparable and period should be as best as possible. From the statement of the proprietor, contemporaneous imports submitted would emerges as the price declared by the appellant was not allowed when contemporaneous import price was not very low. 8. We further find that in this case the adjudicating authority had resolved the valua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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