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TMI Blog2016 (10) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellant firms. The revenue thus accepted that the imported goods were Polyester Silver metallised polyester film/ yarn with no content of silver or gold. Only for the reason that the insurance policy of some of the consignments of being higher amount the value cannot be enhanced. The decision in the case of ANAND MAHINDRA Versus COMMR. OF CUS. (IMPORT), MUMBAI [2008 (2) TMI 104 - CESTAT MUMBAI] relied upon. In order to hold the imports as contemporaneous and to invoke Rule 6 of Customs Valuation Rules, it is necessary to show that the goods are identical goods' or similar goods'. Such goods have to be same in all specifications such as physical characteristics, quality, country of origin, quantity - the allegation of undervaluation against the Appellant firms does not establish. Demand of duty, penalty and fine not sustainable - appeal allowed - decided in favor of appellant. - C/899-901/09 - A/86514-86516/16/CB - Dated:- 17-3-2016 - Mr. M.V. Ravindran, Member (Judicial) and Mr. C.J. Mathew, Member (Technical) Shri T. Vishwanathan, Advocate for appellant Shri M.K. Sarangi, Dy. Commr (AR) for respondent ORDER These appeal Nos. C/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of similar goods; imports of similar goods by M/s I.S.Corporation from M/s Oike Tec Co. Ltd. and the statement of Shri Pragnesh Jariwala, director of M/s Surat Metlon Pvt. Ltd. and authorized signatory of M/s I.S.Corporation. 4. It was alleged that both these firms has imported Pure Silver Metallic Polyester Yarn at the rates ranging between US$ 5.00 per Kg 7.00 per Kg and Polyester Silver Metallised Film at the rate of US$ 2.45 per Kgs to US$ 2.55 Per Kgs through JNCH, Nhava-Sheva and Kolkata Ports by undervaluing the same in connivance with their overseas supplier whereas the actual price was between 30 - 35 USD. That Shri Pagnesh Jariwala, Director of M/s Surat Metlon Pvt. Ltd. and authorized signatory of M/s I.S.Corporation admitted that the goods were undervalued. Allegedly that the supplier M/s Brightex Corporation had raised parallel set of invoice for every consignment, one was for presenting before Customs authority and other was meant for the insurance purpose; that the surn insured was 110% of the actual value and the differential amount (difference between the actual price and invoice price) was paid to the representatives of these firms in Indian currency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee, Ministry of Textiles, Govt. of India, Textile Laboratory and Research Center, Mumbai on the samples drawn by the Customs, Nhava Sheva from the B/E No. 892058 dt. 05.09.2006. He submits that the Appellant has been undisputedly importing Polyester metallic yarn (Imitation Zari) B. Grade from M/s Brightex Co., Japan, M/s East West Corporation, Japan and M/s Sanwa Co., Japan since June' 2006. That the payment for the imported goods is made through banking channels and no extra remittance was made over and above the price shown in the invoices raised by the respective suppliers. At the time of assessment of the imported goods, Bill of Entry, lading, invoice of the Supplier, packing list and insurance Policy was submitted. The assessing officer in certain cases felt that the value declared is on the lower side and enhanced the same and assessed the goods to duty at the enhanced value. That now in present proceedings demand cannot be made on account of change of opinion or change of view by invoking the extended period of limitation as the information now relied upon to demand duty was otherwise available with the customs department. He relies upon the judgment of Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that in case of metallic yarn of size 1/64 it is undisputed fact that the imported goods were of B Grade as apparent from the import document and reply to SCN. The goods imported by the Appellants are B grade / lower grade as may be seen from the import documents annexed to the appeal and their reply to SCN. As per the terms of agreement between the Appellant firms and the foreign suppliers, the terms of contract are on CIF basis and thus the ownership of the goods is transferred at the destination port and the seller has to bear the risk till the destination port. Hence, if the goods are lost in transit, then the exporter is under an obligation to supply the goods to the appellants. In such a situation, if the exporter is unable to get B grade goods, he has to supply the A grade of goods to discharge his obligation. Grade A goods will cost more than the B grade and for this reason, the exporter may have insured the goods at a higher value. Hence, the value shown in the insurance can never be adopted as the transaction value of the imported goods. He places reliance upon the judgment of Mihir Enterprises Vs CC (Import) Mumbai 2008 (227) ELT 75 (Tri. Mum.), Anand Mahindra Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value of the imported goods under Rule 6, he submits that it was only an enquiry or an indicative price of the goods at which M/s Brightex Corporation had proposed to sell the goods to the appellants. It does not indicate the transaction value of similar goods. The email dated 8.8.05 was in respect of A grade or prime quality goods whereas the goods imported by the appellants were of B grade as per the parameter terms provided by the supplier of the Appellants. The Tribunal in the case of Deepak Enterprises Vs CC in 2003 (159) ELT 851 (Tri.-Kolkatta) has held that valuation of the imported goods on the basis of the price list and/ or invoice or Performa invoice is not sustainable. The department has not adduced any evidence to show that the goods were imported into India, either by the appellants or by others, at the prices mentioned in the email dated 8.8.05. There is no admission to this effect that the goods were imported by the appellants at the prices shown in the email dated 8.8.05. In fact in the statement dated 28.02.08. Shri Pragnesh Jariwala has clearly stated that the appellants have not imported the same goods from M/s Brightex Corporation, Japan. Hence, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tec it was merely A grade purchases of less than 660 Kgs. He further submits that in the SCN has also relied upon sales note of M/s Brightex to M/s Navbharat Impex which is only a unsealed/ unsigned quotation hence cannot be relied upon. That all imports shown in the SCN i.e Lakhotia Polyester or M/s Laxmi Trading were all of either Pure Silver metallised Film or of Metallic Yarn Gold which are not contemporaneous imports since the goods of the Appellant are importing Polyester film with no content of Silver or Gold and that too of B grade. 6.6 He reiterates that the main basis adopted for enhancement of value is higher amount of Insurance appearing only in some consignments, however in respect of rest of the imports, the value shown in the insurance policy has not been taken as the basis. This is because, in respect of the other imports, the value shown in the invoice and the value shown in the insurance policy tallied and there was no difference in the values. The department ought to have adopted a uniform basis for determining the value of the imported goods. Selective assessment to suit the needs of the customs department cannot be accepted. 6.7 He submits that invoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were not adduced. Copies of such invoices were also not adduced. Thus merely on the basis of these two statements made by Shri Pragnesh Jariwala, it cannot be concluded that there is under valuation of the imported goods. He submits that the allegations against the Appellants are not tenable and impugned order is liable to be set aside. He also submits that the goods are not liable for confiscation as there is no undervaluation. Without prejudice he also submits that no fine can be imposed as goods are not available for confiscation. He places reliance upon the judgment of Shiv Kripa ispat Pvt. Ltd. V. Commissioner of C.EX Cus., Nasik, 2009 (235) E.L.T. 623 (Tri. LB) and judgment of Hon'ble Bombay High Court in the case of CC Import Vs. Rishi Ship Breakers- Custom Appeal No. 70 of 2009, CC Import Vs. Finessee Creation inc.- (2009 ELT (248) 122 (Bom.) as maintained by Supreme Court in 2010 (255) EL T A 120. 7. The Ld. AR appearing for the revenue would support the finding of the impugned order. He submits that if the goods are assessed at the time of importation but later from investigation it turns out that the goods were undervalued, there is no bar in enhancing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Divyesh Bros. The authorities did not conduct any test of goods as it turned out that the test report No. TC/LM/SE4464/2006-07 dt. 15.09.2006 issued by the Textiles Committee, Ministry of Textiles, Govt. of India, Textile Laboratory and Research Center, Mumbai on the drawn by the Customs, Shava from the B/ E No. 892058 dt. 05.09.2006 revealed that there is no silver or gold content in the films imported by the Appellant firms. The revenue thus accepted that the imported goods were Polyester Silver metallised polyester film/ yarn with no content of silver or gold. 9.1 The demand is mainly based upon the higher value of goods shown in some of the insurance policy of imported goods which was issued in the name of the supplier of the goods M/s Brightex Corporation. We find that such higher value is not appearing in all the insurance policy but only in case of few consignments. We agree with the submission made by the Appellants that the value shown in such policies cannot be ground to enhance value as such value might have been shown to get higher amount of compensation in the event of goods getting lost or destroyed and that Appellant has no control over such incidents. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt over and above the invoice value was paid to the persons of the foreign supplier in India, however no facts are appearing in the show cause notice or no investigation has been conducted as to who were the persons to whom such amounts were paid and on whose instruction. No evidence has been found from the Appellant firm or even from any source which can show that any amount was paid to foreign supplier over and above the invoice price stated in the import document. In absence of any evidence of payment of amount over and above the invoice value or the complicity of the importer and foreign supplier to undervalue the goods we hold that the allegation of the show cause notice of undervaluation of goods does not sustain. The statement of Shri Pragnesh Jariwala is thus not a conclusive evidence of undervaluation of imported goods as it is not corroborated with any evidence. The investigation did not come out with any instance as to who were the persons to whom such amount was paid or when such amount was paid and how the amount was paid No investigation was conducted at the supplier's end and in absence of any investigation the statement of Shri Pragnesh Jariwala cannot be a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om said M/s Keio Corporation even the imports made by the Appellant firm is not of goods containing pure silver or gold. Hence not being contemporaneous imports no adverse conclusion can be drawn from said offer price. The show cause notice has also relied upon the imports made by M/s I.S Corporation from M/s Oike Tec Japan. We find that the said imports made from M/s Oike Tec, Japan was of approximately 600 - 700 Kgs of Metallic Yarn which are of A grade quality and much less quantity than what the Appellant firms has purchased from M/s Brightex Corporation. The import from M/s Oike is very small quantity whereas the import from M/s Brightex was of more than 56000 Kgs and also there is difference in quality, quantity and supplier. Hence the imports are not contemporaneous. Further reliance has been placed upon the imports made by firms such as sale note issued by M/s Brightex Corporation to M/s Navbharat impex of Silver metallised yarn and imports made by M/s Shree Laxmi Trading Co., Surat of Silver Metallic yarn or Metallic Yarn (Gold). We find that in case of both the concerns the goods are pure silver metallic and not of the same level as that imported by the Appellant firms. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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