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TMI Blog2015 (10) TMI 2390X X X X Extracts X X X X X X X X Extracts X X X X ..... the Residual Rule 8 of Customs Valuation Rules - Order of Commissioner (Appeals) is not sustainable – Decided against the Revenue. - Appeal No. C/559/2004-Mum - Final Order No. A/3285/2015-WZB/CB - Dated:- 30-9-2015 - Mr. P.S.Pruthi, Member (Technical) And Mr. Ramesh Nair, Member (Judicial) Shri V.M. Doiphode, Advocate : For The Petitioner Shri D.K. Sinha, Assistant Commissioner (A.R) : For The Respondent ORDER Per : P.S. Pruthi This appeal is directed against the impugned Order-in-Appeal dt. 27.2.2004 passed by the Commissioner (Appeals) Mumbai. 2. The appellant imported second hand machinery vide Bill of Entry No. 6330 dated 16.08.1994. As per the License and Technical Collaboration Agreement with BBA Group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Tolin Rubbers Pvt. Ltd. Vs. Commissioner of Customs, Cochin 2003 (163) E.L.T. 289 (S.C.) would apply. According to him, once the transaction value is determinable under Rule 4(1) of the Customs Valuation Rules there is no question of determining the value under subsequent rules. Learned Counsel also submitted that even while arriving at the value on the basis of estimated value at the time of original purchase, the department mistakenly did not deduct the transaction value of # 65000 but deducted #38000 to arrive at the amount by which the value is loaded. 5. The Ld. AR reiterated the findings of the Commissioner (Appeals). 6. We have carefully gone through the facts of the case and submissions made by both sides. Machines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value and the value of the goods at the time of original purchase based on purchase price is not available. 6.1. The lower authorities have relied on the Apex Court judgment in the case of Gajra Bevel Gears (supra). We find the facts in the case of Gajra Bevel Gears are at variance from the facts in the present case. In that case the value in the import license was for importing machines of 1984 make and, therefore, it was held that the invoice shall give the price only of machines which are of 1984 make whereas the second hand machines imported were of 1986 make. In that situation it was held by the Tribunal that the invoice value is not acceptable especially when the importer himself supplies Chartered Engineers certificate indicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are given in a different context. Commissioner (Appeals) has neither explained the context nor given any reasons. To prefer one judgment over the other judgments, the same cannot be quoted out of context. Therefore, the order of Commissioner (Appeals) is not sustainable. 7. Although, the point discussed above is the only basis on which Commissioner (Appeals) passed his order, the Ld. Counsel fairly concedes that the adjudicating authority had tried to establish relationship between the supplier and the appellant in that the appellant was obliged to pay royalty on the goods manufactured by them. We have seen the terms of the Agreement. There is no denying that, apart from the sale of machinery for #65000, royalty was paid. But no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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