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TMI Blog2012 (10) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is imprinted as TREO, Item No., Item Code, Design No., Standard Packing, Case Nos. while the inner packs found to be printed with TREO, Premium Imported Opal Wares, the Logos of Microwave Proof, Dish Washer Safe, Chip Resistant, Freeze Resistant". In the Bill of Entry, description of the goods was found to have been mentioned as Glassware. However, at ICD, Vapi it was noticed that 8 containers of Hamilton were pending clearance from which samples were drawn for testing. After investigation and issuance of show cause notice and adjudication proceedings, the impugned order has been passed which is a common order for imports made under the jurisdiction of the Commissioner of Customs, Ahmedabad, Commissioner of Customs, Nhava Sheva, Chennai and Kolkatta to hold that the goods imported by the appellants were classified as Glassware of a kind used for table/(other than drinking glass) for kitchen purpose, having a linear coefficient of expansion of not exceeding 5 x 10.4-6 per Kelvin within a temperature of 0 degree to 300 degree C., whereas Hamilton has claimed classification under the Heading 7013 39 00. The rate of duty for both the items were same. On the ground that Hamilton has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve more than 5% boric acid. Therefore, they are of borosilicate glass type (ASTM 162). The samples has been sent for testing of borosilicate content, the thermal resistance, between 0 to 300 degree C. and linear coefficient expansion. The question that arises is whether this report is sufficient to hold that the goods are correctly classified under CTH as claimed by the department. Unfortunately, even though in the test memo query had been raised to determine linear coefficient of thermal expansion, the Chemical Examiner simply stated that the fact that there was no breakage on heating and cooling would indicate low linear coefficient of expansion and he has not quantified the same. On the other hand, the supplier of the goods had certified the coefficient thermal expansion of the imported goods as 5.9 x 10-6 per Kelvin and the appellant got tested the imported goods at Central Glass & Ceramic Research Institute (CGCRI), Kolkata. The Institute certified that the thermal expansion of the imported goods is 6.99 x 10-6 per Kelvin. Thus we have a situation where the supplier's certificate and the certificate obtained by the importer are contradictory to the report of the Chemical Exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermal expansion. Therefore, when the appellants requested for retest by CGCRI, Kolkatta, it could have been considered. In any case option was available to the department to send it for retest to the Chief Chemist at Delhi which was also not done. On the one hand, we have a blank statement from the Chemical Examiner in the test report that, since there was no breakage on hearing and cooling, it indicates lower linear coefficient of expansion. How can we conclude whether it is below the level prescribed in the heading or not is not indicated by the Chemical Examiner. We could have appreciated if he stated clearly that it is lower than what is prescribed in the tariff heading. Even this is not forthcoming from the reports. On the other hand, the supplier of the appellants and CGCRI has clearly measured the linear coefficient of expansion and have indicated the same. Under these circumstances, we have no option but to hold that the department has failed to show and prove that the classification of the goods in question would come under 7013 32 00. 9. The next question that arises is whether there was misdeclaration of description by the appellants. On going through some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available for only 10" full plate and 7" quarter plate and in respect of their items, they could not produce the MoU. The Commissioner also found that after 2006, there was no fresh MoU and basis of price and specific shapes of new mould could not be found out. As regards claim of the appellant that the goods were specially designed for them with different art work, the Commissioner had observed that this would actually increase the rate and not decrease the rate. As regards reliance on the e-mail and submissions of the appellants that there was no evidence to show M/s. K.P. International had imported the goods figuring in e-mail, the Commissioner has observed that differential duty of Rs. 90 lakh was paid by M/s. K.P. International and they have already approached the Settlement Commission for settlement of the case. As regards contentions that price redetermination has to be made on the basis of contemporaneous price, the Commissioner has stated that it was admitted by Shri Vishal Konde, General Manager, that there was no escalation in the price of M/s. Wenzhou and therefore reliance on price list of 9-2-2004 and E-mail, dated 15-3-2004 and evidence in the form of parallel invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in their case and, therefore, differential duty demanded is not sustainable. 13. The claim of such imports by others at lower values has been rejected holding that it was for other jurisdictional authorities to take action. We find that this was an incorrect observation. Absence of any evidence to show and any admission by the company to show that actual transaction value was higher in the absence of any admission of excess payment and its quantum, it was necessary for the Commissioner to follow the Customs Valuation Rules after rejecting transaction value for which we find that there are ground made out even though appellants had resisted this. Having rejected the transaction value, the next step was to proceed to determine the value by following the rules. As submitted by appellants, the proper course for the Commissioner was to apply Rule 6(2) read with Rule 5(3) of Customs Valuation Rules. In this case transaction value of similar goods by other importers was available and for rejecting the same it should have been shown that the department has not accepted those values, by taking appropriate action. Whereas the Commissioner has simply stated that it is for the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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