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TMI Blog2015 (12) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... s invoice before the Commissioner of Customs. Appellants had relied various Bills of Entry and invoices in the form of additional evidence submitted before the Tribunal of import of Polyester Fabrics. In this regard, we find that appellant submitted written submissions to SCN before the adjudicating authority and also appeared for the personal hearing and failed to substantiate their claim during the adjudication proceedings. Therefore, we do not find any force in appellant relying these documents at this juncture. On the valuation of the goods based on contemporaneous imports, we rely Hon'ble Supreme Court judgement in the case of CC Mumbai Vs ShiBani Engg. System (1996 (8) TMI 106 - SUPREME COURT OF INDIA). - In the case of CC Vs Prodeline India Pvt. Ltd. [2006 (8) TMI 186 - SUPREME COURT OF INDIA] wherein the Court has clearly held that Revenue is bound to prove the declared price is not true value and should bring on record any evidence of identical goods/similar goods imported at higher price. In the absence of any valid documents by the appellant it is evident that declared price of US$ 0.70 per mtr. is not a normal price and the same cannot be considered as transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the investigation and recording of various statements, SCN dt. 6.7.2012 was issued to the appellant for confiscation of goods under Section 111 (m) and rejection of declared value demanding duty on the redetermined value and for imposition of penalty. The Commissioner of Customs, Tuticorin after following the principles of natural justice in his order rejected the declared value of US$ 0.7 per Mtr on the imported goods and re-determined the value of US$ 1.05 per meter under Rule 4 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and also ordered for payment of duty of ₹ 69,61,352/-. He confiscated the goods covered under Bill of Entry No.5449215 dt. 13.12.2011 under Section 111 (m) and also imposed penalty of ₹ 30 lakhs on Shri Anil Kumar Tiwari, Proprietor of appellant company under Section 112A of the Customs Act. Hence the present appeals. 3. Heard both sides. Ld. Senior Advocate Dr. G.K. Sarkar, appearing for the appellant, reiterated the grounds of appeal and submits that the goods were imported and appellant declared the correct price whereas the Customs enhanced the price based on the contemporaneous imports. He drew our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comparable invoice at page 44. She referred to mahazar for seizure of the goods annexed at page 51 52 and submits that the goods imported are polyester knitted fabrics whereas the appellant declared the goods as Polyester Fabrics whereas on examination the goods were found to be Polyester Suiting Fabrics . She referred to para-22 of the OIO and also relied the statement of proprietor Shri Anil Kumar Tiwari annexed at page 65, 66 wherein he has admitted that price of comparable goods shown to him is between US$ 2.2 and US$ 3.5 per kg. and admitted that he offered his price of US$ 0.70 per metre (US$ 2.1 per kg) and the supplier accepted to supply the fabrics at the above price. She submits that value of suiting material is higher than general polyester fabrics. She relied invoice dt. 6.9.2011 of M/s.Shaoxing Mina Textile Co. Ltd., China annexed at page 53 where the contemporaneous goods were imported at the price of US$ 1.32 per mtr. and US$ 2.36 per mtr. supplied from the same country of origin which is similar to contemporaneous of invoice pertaining to M/s.ICON Fibers and Fabrics P. Ltd. She relied Supreme Court s decision in the case of CC Bombay Vs Shibani Engineering Sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of Entry No.6800547 dt. 11.5.2012 of M/s.ICON Fibers and Fabrics P. Ltd., Mumbai is not comparable. In this regard, we find that the impugned goods and the comparable goods were originated from China and shipment made from M/s.Shaoxing Mina Textile Co. Ltd., China in and around the same time and the date of shipment of both consignments are dt. 29.10.2011 and 11.11.2011 respectively. The appellant is also a trader and purchased the goods from supplier who is also a trader which is similar to evidence relied by Revenue. We find that appellant failed to produce any evidence of purchase order and terms and conditions of sale and manufacturers invoice before the Commissioner of Customs. In the absence of any evidence, we do not find any justification on the appellants argument that when compared to contemporaneous imports, the impugned goods were declared at US$ 0.70 per mtr., whereas the international price of Polyester Woven Fabrics is between US$ 2.36 and US$ 1.05 per mtr and the adjudicating authority has correctly taken the lowest price of US$ 1.05 per mtr. There is a difference of 33% less when compared to US$ 1.05/mtr. which cannot be considered as normal discount offer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of reading the word and disjunctively here. The Exemption Notification must be read plainly, as an ordinary man would read it, and, so read, Sl. No. 6(a) says that cups of roller bearings are liable to the duty applicable to the bearings of which they are part and cones of roller bearings are liable to the rate of duty applicable to the bearings of which they are part. There is no justification for reading the entry conjunctively in the sense that the rate of duty applicable to the bearings of which they are part will apply only when the cups and cones of roller bearings are imported together but not if they are imported separately. 11. Insofar as valuation is concerned, the Collector was right in rejecting the transaction value of the goods because, plainly, it was a totally unrealistic value. For the purpose of placing a value on the goods, however, the Collector resorted to very tenuous reasoning which we cannot uphold. At the same time, we must say that we do not approve of the findings of the Tribunal in this behalf, which we have referred to above. It may in a given case be necessary to value unbranded goods on the basis of the known price of branded goods and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US$ 0.70 to US$ 1.05 per mtr. determined by the adjudicating authority is fully justified and liable to be upheld. Consequently, the confiscation of the seized goods under Section 111 (m) and demand of differential duty of ₹ 69,61,352/- on the re-determined value under Section 28 of Customs Act is upheld. 11. As regards appellant s contention on denial of DFIA licence, we find that adjudicating authority in the impugned order while confirming the demand denied benefit under DFIA licence. On perusal of records, it is seen that there was no allegation made in the SCN for the denial of benefit of DFIA Licence or any misuse of DFIA licene for clearance of the goods. Therefore, we hold that appellants are entitled to utilize DFIA licence for clearance of the said goods. Accordingly, we allow DFIA benefit for clearance of the said goods. 12. As regards the imposition of redemption fine and penalty, by taking into account overall facts and circumstances of the case, and also considering the fact that appellants have not availed provisional release of the goods ordered by the authority after seizure of the goods, and the goods are still lying with the Customs, we reduce the red ..... X X X X Extracts X X X X X X X X Extracts X X X X
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