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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 ..... ion of investigation and initiation of proceedings, the impugned order passed confirming demand of differential duty with interest having a difference between the duty liable as per the existence value and the value declared by the appellant. Further, penalty equal to duty has also been imposed. A chart given below would show the value declared by the appellants and the value existence by the Revenue and the evidences relied upon by the department as submitted by the appellant during the hearing. Sr. No. Period Description of the goods Rate per Kg. (declared) (in USD) Rate per Kg. (as assessed) (in USD) Evidence relied upon by Department 1. 19-7-2006 to 27-4-2007 Sr. No. 2 to 11 and 32 of annexure to SCN 150 Micron Spangle Film 0.80/0.81 4.50 The Department has relied upon a solitary import made by M/s. Sunflower Embroidery Pvt. Ltd. on 12-12-2006 for valuing the goods imported by the appellant during 19-7-2006 to 6-12-2007, i.e. almost 18 months. The said importer had imported a meagre quantity of 1353 Kgs. As detailed as under : (i) 207.20 Kgs @ US$ 2.50 per Kg. (ii) 995.10 Kgs @ US$ 3.80 per Kg. (iii) 150.70 Kgs @ US$ 4.50 per K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt can be done to the other rules as can be seen from the statement recorded from proprietor of the appellant on 12-6-2008, the price ranged from US$ 33 to US$ 40 per roll of 500 meters. However, there was no further query or investigation was made in this aspect. On going through the various Bills of Entry filed, we noticed that price varied from 0.8 USD per Kg in the Bill of Entry from 19-7-2006 to 27-4-2007. Subsequently, the price was increased and the last price at the time of recording statement was USD 1.5 per kg. Therefore, it is quite clear that no effort was made while recording the above statement to ascertain the actual amount paid for the film Bill of Entry wise and period wise or at least the total amount paid for all the film. Neither side would show to us whether such detail and value or Bill of Entry wise value was found or ascertained. Other than the statement, the difference would be settled in the cost, in absence of any quantification and in absence of any further enquiry with regard to transaction, the USD 33 to USD 40 indicated by the proprietor'becomes to unutilized for the purpose of determination of value. In any case, if the value has not been adopted als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the transaction values declared by other importers are more or less the same as that of the appellant. In spite of the aforesaid specific finding the adjudicating authority has brushed aside the transaction values in cases where values declared by the appellant were more or less the same as that of other importers without any justification any/or any evidence and has enhanced the value by holding that the impugned goods are sensitive commodities with respect to valuation and are prone to gross undervaluation across most of the ports. While holding accordingly on one hand, the adjudicating authority on the other hand has relied upon solitary instance of import by one M/s. Sunflower Embroidery Pvt. Ltd. Valuation of goods under import for levy of customs duty is not based on the same being sensitive commodity or otherwise but contemporaneous import is the acid test for valuation. Under the circumstances, when there were ample instances of contemporaneous imports available and which too were got verified by the adjudicating authority then in that eventuality there was no reason for the adjudicating authority to discard the same and not to accept the value declared by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This submission has not been accepted by the adjudicating authority stating that the packing list only mentions certain code words with regard to the goods but does not throw any light on the grade or colour of the film. Against this, it is required to be noted that even the bill of entry pertaining to the so called contemporaneous imports filed by M/s. Sunflower Embroidery Pvt. Ltd. contains such code words which have been found to be a reliable piece of evidence for the purpose of revision of price, there was no reason for the adjudicating authority for not accepting the packing list referred to by the appellant. 4.4 In these circumstances the learned Advocate submitted that without any concrete evidence for enhancement of declared price the transaction value is correct value therefore, the impugned order is to be set aside. 5. On the other hand, the learned AR appeared for the Revenue submitted that the value was not determined on the basis of contemporaneous imports but by following the last rule of Valuation Rules, which is the best judgment rule. For rejecting the transaction value and contemporaneous import, the reasons given by the Commissioner are that the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Kam Han Industrial Ltd., Hong Kong, whereas on going through the list as pointed out by the learned Counsel, the appellant who also imported film from M/s. Wenzhou Hongda Laser Picture Co. Ltd. and other companies in China and the statements given by them that in respect of import from these companies, there would have been no undervaluation, has not been considered at all. Further, when the price increased from USD 0.8 to USD 1.5 during the period of one and a half year, application of almost three times the price in import made during the whole period to use the best judgment rule without showing the lower price does not appear to be reasoned. Further, to arrive at the value of import as offer received by the appellant by e-mail even though it was stated that one of e-mail was accepted and there was written acceptance of the offer by e-mail. On going through the e-mail during hearing itself, we find that there was no acceptance of the offer nor there was any suppression as a result of exchange of e-mail, the appellant getting from his client a common practice and admittedly they had got e-mail offer but they found the prices very high and wanted to get the lower prices. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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