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TMI Blog2018 (12) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ound correct. It is also a fact that in respect of 13 Bills of Entry which was finally assessed and the clearance was effected, the Department tried to enhance the price based on the data received from overseas sources as well as from the two Bills of Entry imported by the appellants. It is the contention of the Department that the price of the similar goods should therefore had been applicable in all the past cases as well. It is a common knowledge that the jute backing polypropylene carpet are of the different types and quality may be superior or inferior and therefore without the sample being analyzed by the competent authority, it cannot be concluded that the goods are same or similar quality for want of specific information. Having not followed the procedure under Section 14(1) and 14 (1A) read with Customs Valuation Rules by the Adjudicating Authority and rejecting the transaction value without the contemporaneous price, the demand confirmed by the adjudicating authority in the impugned order is not sustainable - appeal allowed - decided in favor of appellant. - Appeal No. C/76631/2014-DB - FO/76647/2018 - Dated:- 17-9-2018 - Mr. P.K. Choudhary, Member (Judicial) And Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act. The appellant has challenged the same in the impugned appeal. 5. Ld. Advocate, on behalf of the appellant submits that the present show cause notice has been issued on information received by the DRI regarding the gross undervaluation of import of Polypropylene carpets with Jute Backing from Indonesia imported by the appellant. The value of the imported consignment did not pertain to the Bill of Entry in question but also for the similar goods imported under various other Bills of Entry which has been cleared in past after the final assessment thereof by the proper officer and payment of duty thereupon by the appellant. The department has not filed appeal against any of these assessments. The consignment has left the Customs boundary and entered into market. Therefore, department is debarred from raising demands after lapse of so many years. Regarding the present consignment, ld. Advocate submits that the information received from the Indonesian Customs, although mentions the Bill of Entry in question, however, the quantity imported does not matches with the one declared in the Bill of Entry. In the report submitted by the Indonesian Customs, the quantity declared is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant themselves in the year 2011 is not appropriated. From the description given in the Bill of Entry, it cannot be presumed that those were pertaining to identical products as the carpet imported may have the different quality and nature. Therefore, it cannot be presumed that those were identical products. The very. essence of the definition of similar or identical goods in the Customs Valuation Rules is that the product should be of the same quality and characteristic. The department has not made any effort to establish the goods were of identical/similar as per the definition in Custom Valuation Rules, 2007. No evidence of any extra remittance made by the appellant has been procured by the department. Therefore, the charge of mis-declaration cannot be vested upon the importer. 8. The ld. Advocate also states that in the impugned order-inoriginal, the adjudicating authority as re-assessed value of goods in sub para 3 of operative part of the order is ₹ 50,11,633/- under Section 17 of the Customs Act, 1962. The perusal of the Section 17 makes it clear that the re-assessment done by the adjudicating authority in the instant case is without the sanction of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. DR has supported the impugned order and stated that the appellant had indulged into mis-declaration of the value of the imported consignment which is evident from the report received from the Ministry of Finance of Republic of Indonesia which confirmed that in respect of same Bill of Lading number and date and the invoice the value declared is to the extent of ₹ 3.4 USD. However, the importer has declared price of USD 2,000/- PSM before the Indian Customs in order to evade the customs duty after DRI investigation. 13. We have heard the rival contentions and also considered the appeal record. The issue in the present appeal is as to whether the consignment imported by the appellant was undervalued or not. In this regard, we find that the Department has solely relied upon the information received from the overseas source i.e. from the Ministry of Finance of Republic of Indonesia, sent to the First Secretary (Commerce), High Commission of India in Singapore. We have perused the aforesaid report and the same is reproduced as under : Subject: Confirmation of goods supplied by UNIVERSAL CARPET RUGS In response to your letter number COIN/SIN/IND/2012- 13 dated 17 Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on other circumstantial evidence. The respondent have claimed that they have paid only 10,000 Euros and there was no advance payment of 8,000 Euro as mentioned in the invoice produced and relied upon by the Custom department. There is no investigation regarding the payment actually made in respect of the transactions. The Director of the respondent-company no doubt in his statement dated 18-11-04 assured that they will take up the matter with the foreign supplier. The department appears to have not recorded any further statement. Further, there is a glaring discrepancy in the documents relied upon by the department. While the invoice annexed to the report of the German authorities refers to 040/08/2002, dated 30-8-2002, the report by the German authorities and forwarding letter of the First Secretary, Indian Embassy of Belgium referred to Invoice No. 04/08/2002, dated 30th August, 2002. This discrepancy was sought to be explained as a clerical mistake. As the only evidence relied upon for enhancing the value is this document and since there is no other corroboration or admission by the respondent regarding undervaluation, the discrepancies cannot be ignored. Therefore, we do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... past imported consignment which is contrary to the aforesaid decision of the Hon ble Tribunal. It has been held by the Hon ble Supreme Court in the case of Commissioner of Customs, Calcutta Vs. South India Television (P) Ltd. 2007 (214) ELT 3 (SC) that : Valuation (Customs) - Under-invoicing - Casting suspicion on invoice produced by importer not sufficient to reject it as evidence of value of imported goods - Undervaluation has to be proved by evidence or information about comparable imports - For proving under-valuation, if Department relies on declaration made in exporting country, it has to show how such declaration was procured - Strict rules of evidence do not apply to adjudication proceedings though adjudicating officer has to examine probative value of documents on which reliance is placed by Department - Value in export declaration may be relied upon for ascertainment of assessable value under Customs (Valuation) Rules, 1988 and not for determining the price at which goods are ordinarily sold at the time and place of importation - Sections 14(1) and 14 (1A) of Customs Act, 1962 - Rule 4 ibid. [para 6] 15. Having not followed the procedure under Section 14( ..... 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