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TMI Blog2016 (12) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been in accordance with the provisions in the Customs Valuation Rules and not by placing reliance on an expert appraiser as has been done by the original authority. Reliance was placed in the decision of the case of Essar Graphics (P) Ltd. v. Commissioner of Customs, Chennai [1998 (8) TMI 250 - CEGAT, MADRAS], where it was held that rejection of value cannot be done merely relying on foreign Chartered Engineer’s certificate Declared value to be accepted - appeal allowed - decided in favor of appellant. - C/1245 & 1246/2004 - A/88277-88278/16/CB - Dated:- 1-7-2016 - Shri MV Ravindran, Member (Judicial) and Shri CJ Mathew, Member (Technical) Shri Anil Balani, Advocate for the appellant Shri D.S. Maan, Asstt. Commissioner (AR) for the respondent ORDER M/S Modipon Fibres Co. seeks quashing of order-in-appeal no: 633, 634/2004-MCH dated 18 th October 2004 of Commissioner of Customs (Appeals), Mumbai - III relating to a dispute in valuation of 'Wartsila Reconditioned 18V32LN engine no. 21888 with Napier Trubocharger Reconditioned ABB alternator rated at 7600 KVA with AVR' imported in November 2002. 2. The declared value of 4,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so filed another appeal against rejection of the refund claim by the lower authority. As the appeal against the order of assessment by the appellants is being rejected, the other appeal is also rejected accordingly. Accordingly, I confirm the order-in-original and reject both the appeals. 5. The learned Counsel for the appellant placed reliance on the decision of the Tribunal in Essar Graphics (P) Ltd. v. Commissioner of Customs, Chennai [1999 (107) ELT 94 (Tribunal)] which has been followed in Coats Viyella India Ltd v. Collector of Customs, Chennai [2001 (133) ELT 373 (Tri.-Bang.)]. 6. Learned Authorised Representative relies upon the decision of the Tribunal in Essar Steel Ltd v. Commissioner of Customs, Ahmedabad [2004 (166) ETL 90 (Tri-Mumbai) ; Gira Enterprises v. Commissioner of Customs, Ahmedabad [2006 (194) ELT 92 (Tri. Mumbai); Aarti Impex v. Commissioner of Central Excise, Ghaziabad [2014 (313) ELT 77 (Tri-Del.)]; Uma Mercantile Pvt. Ltd. v. Commissioner of Customs, Chennai [2008 (226) ELT 614 (Tri.- Chennai)] and judgment of the Hon'ble Supreme Court in Collector of Customs, Calcutta v. Sanjay Chandiram [1995 (77) ELT 241 (SC)] . It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the enhancement of value should have been in accordance with the provisions in the Customs Valuation Rules and not by placing reliance on an expert appraiser as has been done by the original authority. 8. We refer to the decision of this Tribunal in Essar Graphics (P) Ltd. (supra), the relevant portion of which is as under: 7. We have carefully, considered the arguments on both sides, as well as the records of the case. We find that the transaction as contained in this invoice cannot be discarded in the manner adopted in the impugned Order-in-Original for the following reasons :- (a) In 1992 (58) E.L.T. 131 (Tribunal), it has been held that a transaction value cannot be discarded without pointing out circumstances set in Rule 4(2) or 4(3); (b) In the case of Chem Crown (I) Ltd. as reported in 1998 (100) E.L.T. 126 (Tribunal), it has once again been held that the transaction value cannot be routinely discarded except on clear evidence that invoice is not genuine and that something else has passed clandestinely from importer to foreign supplier. However, no such evidence is on record in this case; (c) On a plain reading of Section 14 as well as Rules 3 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely because the Chartered Engineer s certificate errs on date (year) of manufacture, this by itself does not render the invoice fraudulent. It has been argued that age of the machine has nexus to its value. We have no quarrel with this as a principle of valuation under Rule 8. But since this is not a reason prescribed under Rule 4 to reject the transaction value, therefore, it cannot be legally held that wrong age in such a certificate, ipso facto, vitiates the invoice value. The negotiated price was arrived at after the MD Shri Shetty, physically saw the machine on as in where is basis in Australia. Therefore, it cannot be said that the Chartered Engineer Certificate was the only basis for arriving at the negotiated transaction value. As a prudent and shrewd business man he made all necessary enquiries before asking them to supply at Australian Dollars 47,000/-. This is the normal inference available in the face of no evidence to the contrary led by the Department. (h) that the need for a designated engineering agency s certificate for goods valued over ₹ 1 crore under Para 25 of ITC policy has no relevance to valuation under Section 14 of Customs Act and the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch had rejected valuation of second-hand machinery on basis of value of new goods minus 70% of depreciation. Further, in para 10 of this Order No. 1203/98, it is concluded as under :- We find that in view of aforesaid discussion, the law has now evolved on valuation of second hand machinery imported as follows :- (i) That second-hand imported machinery valuation is normally to be done on the basis of Section 14 read with Rule 4 i.e. being second-hand machinery ipso facto, does not mean that the transaction value under Rule 4 ibid is to be discarded per se; and (ii) That further when a Chartered Engineer s certificate supporting the transaction value is produced, it cannot be rejected without either contemporaneous imports of like goods at higher values being shown or proof of the transaction not being in normal course of international trade etc. Again, findings in Para 13 thereof as under are also relevant to this case and is reproduced below :- We find that unless Rule 4 is clearly held as not applicable due to either fraud etc. or contemporaneous imports at higher prices, we cannot proceed to apply any other subsequent Rule, let alone jump staightaway ..... 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