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TMI Blog2007 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... examined and it was found that there was mis-declaration with regard to certain brands. For example, on opening the consignment, it was found that certain undeclared models like Olivetti 8041, 8045, 8040 and Selex GR3100 were available in the consignment. Apart from the photocopiers, 176 Monitors also were imported. In all these goods, the year of manufacture was not mentioned. Prima facie, the Customs Officers doubted the value of the imported goods. There was also licensing violation. It was felt that the second hand Photocopiers and the second hand Monitors required licences under the EXIM Policy for their import. The licences were also not produced. The Customs authorities wanted the manufacturer's invoice from the appellants. The appellants were not in a position to produce the same. They were also not in a position to indicate the year of the manufacture of the second hand photocopiers and monitors. 3. In the second appeal, which is similar to the first one, the goods imported were 85 numbers of Used Canon Photocopiers. In this case also, after examination it was found that there was some discrepancy with regard to the models declared and the models, which were available in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated for mis-declaration of the brands and non production of licences, on the basis of the decision of the Hon'ble Tribunal in the case of M/s. Atul Commodities P. Ltd. v. CC, Cochin & Hyderabad - 2005 (184) E.L.T. 135 (Tri.-LB), it was held that the used Photocopiers are 'Capital Goods' and in terms of the EXIM Policy, there was no need for producing any licence. However, both the Photocopiers and the Monitors were held liable for confiscation on account of the mis-declaration of the description and value. Hence, they were held liable for confiscation. A redemption fine of Rs. 1,00,000/- was imposed and penalty of Rs. 35,000/- under Section 112 was imposed in respect of photocopiers. In respect of monitors, a Redemption Fine of Rs. 30,000/- was imposed and penalty of Rs. 12,000/- under Section 112 was imposed. The appellants approached the Commissioner (Appeals) who upheld the valuation adopted by the lower authority. It was held by the Commissioner (Appeals) that the mis-declaration of certain models is only a technical lapse and there is no evidence on record that it was done with an intention to evade duty. Therefore, the redemption fine of Rs. 1,00,000/- was reduced to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. as required under Rule 10 and 10A of the Customs Valuation (DOPIG) Rules, 1988. The import was from a trader and not from a manufacture. In view of the above and since the importer did not produce any other evidence, there is a reasonable doubt about the correct declared value. Accordingly, the invoice values could not be accepted as representing transaction value and the same merit rejection in terms of Rule 10A of the Customs Valuation Rules, 1988. Rule 5, Rule 6 or Rule 7 of the Customs Valuation Rules, 1988 would not be applicable as the goods are not similar or identical in nature and the extent of their usage etc., date of manufacturing were not known, hence, not comparable." It was urged that in terms of the settled case-laws, the burden is on the Revenue to show the reasons for rejecting the Transaction Value. It was emphasized that in terms of the Customs Act and also the Customs Valuation Rules, the normal practice is to accept the Transaction Value and if the Transaction Value is rejected, then, it should be rejected in terms of the Valuation Rules, especially Rule 4(2). It should be shown that the case falls under any one of the exceptions enumerated in Rule 4(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame Commissioner (Appeals) in their own case. The said Order-in-Appeal No. 24/2005(H-II)Cus. was passed on 31-3-2005. The subject matter of the particular OIA dated 31-3-2005 was also the second hand photocopying machine. In respect of the valuation of the machines, the Commissioner (Appeals) has discussed the matter elaborately referring the decision of the Hon'ble Supreme Court in the case of Eicher Tractors Ltd. and some other cases and had come to the conclusion that Revenue has not given proper grounds under Rule 4(2) in order to reject the Transaction Value. In that case, the Commissioner (Appeals) had accepted the Transaction Value declared by the appellants and passed the order in favour of them whereas in the present case, it was pointed out that the Appellate Authority has not given any reasoned order and he has simply upheld the order of the original authority. 9. The learned Departmental Representative pointed out that the appellants had actually mis-declared the description of the goods. He said the brand names declared by them were not the same when they were examined. As the appellants had not made a proper declaration, according to the learned Depart mental Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve purchased only used second hand goods. The point is that there is no standard value for the used second hand goods. The second hand market for used goods is very volatile and it is possible for the appellants to bargain and obtain the best price possible. Further, the rejection of the Transaction Value for the only reason that the appellants did not produce the manufacturer's invoice and the year of manufacture is not very fair in the absence of other evidences. When different models of second hand goods are obtained from a trader, it would be very difficult for the importer to obtain the manufacturer's invoice. It is by now well settled that in order to reject Transaction Value, the Revenue has to give proper reasons, which are enumerated in Rule 4(2) of the Customs Valuation Rules. In other words, the Transaction Value is normally to be accepted and when it is rejected, it should be rejected for reasons stated in the exceptions enumerated in Rule 4(2) of the Valuation Rules. This has not been done in both these appeals. The appellants have relied on a large number of case-laws. 10.1 The Hon'ble Supreme Court, in the Tolin Rubbers P. Ltd. v. CC, Cochin - 2004 (163) E.L.T. 289 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Authorities for rejecting the declared value of the imported goods. The declared value was accepted by the Court, as there was no exceptional circumstance as laid down under Rule 4(2) in the said case for justifying the rejection of such value. In the case of Shri Venkatesh Enterprise, this bench followed the above decisions of the apex court and accepted the Transaction Value of the goods imported by the assessee. In the result, the valuation done by the Commissioner is set aside and it is directed that the declared value of the goods be accepted for the purpose of levy of duty thereon." 10.4 Therefore, in the present case also, we find that no proper grounds have been made out for rejection of the Transaction Value in terms of Rule 4(2) of the Customs Valuation Rules. In these circumstances, the Transaction Value, as declared by the appellants have to be accepted. Further, the learned Departmental Representative was at pains to show that the mis-declaration of the brands was done only with a view to evade Customs duty. So he was very emphatic that on this ground alone, the Transaction Value is liable to be rejected. However, we find that as regards the mis-declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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