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TMI Blog2019 (5) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... - Appeal No. C/664/2012, C/665/2012 - A/85715-85716/2019 - Dated:- 16-1-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Anil Balani, Advocate for the Appellant Ms. Trupti Chavan, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA These appeal is directed against the Order in Original No CCP/ADJ/APSS/ 01/ 2012 dated 29.03.2012 of the Commissioner Customs (Preventive) New Custom House Mumbai.. By the said order Commissioner held as follows: a. I order that M/s Degmak Engineering Corporation should pay an amount of ₹ 5,92,378/- (Rupees Five Lakhs Ninety Two Thousand Three Hundred and Seventy Eight Only) demanded and recoverable under Section 28(1) of the Customs Ac, 1962, which shall be paid forthwith. b. I impose following penalties under Section 112(a) of the Customs Act, 1962 on i) M/s Degmak Engineering Corporation ₹ 1,00,000/- (Rupees One Lakh only) i) Shri Ashok T Bhatia ₹ 60,000/- (Rupees Sixty Thousand only) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Customs duty is determined on the basis of transaction value and without rejection of transaction value other valuation rules cannot be applied. He relied upon the following decisions. (a) Eicher Tractors Ltd [2000 (122) ELT 321 (SC)] (b) Armstrong World Industries (I) Pvt Ltd. [2015 (317) ELT 324 (T)] (c) PNP Polytex Pvt Ltd [2015 (318) ELT 649 (T)] (d) Om International [2014 (299) ELT 245 (T)] (e) Imperial Lites [2013 (298) ELT 228 (T)] ii. In this case number of RUD s were not supplied to them them and were also not available with the department. Hence the case could not have been further processed. iii. Adjudicating Commissioner was not having the jurisdiction to adjudicate this case in view of order of Hon ble Delhi High Court order in case of Mangali Impex Ltd [2016 (335) ELT 605 (DEL)]. 3.3 Learned Authorized Representative reiterated the findings of Commissioner. 4.1 We have considered the submissions made in the appeal and by both the parties during course of arguments alongwith the impugned order. 4.2 Entire c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of importation and the actual sale value of the imported cargo, which had been ultimately supplied by and sold to M/s Delhi Electric Supply Undertaking. A comparative chart showing the vast difference in values declared by M/s Degmak Engineering Corporation in respect of the imported check valve, in the Bill Of Entry No 4741 dated 10.02.1994 and Invoice No S-340045/4 dated 03.02.1994 of the overseas supplier M/s Creximco International s (Foreign Supplier as compared with the values in the quotation dated 03.09.1993 of the same overseas company a telex message dated 20.04.1993 of the same company is given herein as below: S No Item No (part No) of Valve Spares Value as per Invoice B/E ($) Value as per quotations Value as per Telex in $ 1 SS-CHF6 M6-15 3.60 53.84 78.95 2 SS-CHF6M6-100 3.65 57.21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he valuation has to be done by application of valuation rules, Rule 5 to 8 in seriatim. We are referring to following two decisions of the Hon ble Apex Court on the subject. Garden Silk Mills [1999 (113) ELT 358 (SC)] 5. Section 12 of the Customs Act, 1962 (hereinafter referred to as the Act ) provides for the levy of duty of customs on the goods imported into or exported from India at such rates as may be specified under the Customs Tariff Act, 1975. Prior to its amendment in 1988, Section 14 of the Act read as follows : 14. Valuation of goods for purposes of assessment. - (1) For the purposes of Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be : (a) the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination of the value of the imported goods. The appellants are right in contending that this is a deeming provision. The value of such goods is to be deemed to be the price at which such goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale. The price of the imported goods, in other words, has to be determined in respect of import of those goods for delivery at the time and place of importation. It appears to us that the word delivery must necessarily mean the point of time when the goods can be physically delivered to the importer. In other words, delivery and discharge are not synonymous. As we shall presently see, merely by the shipper discharging the goods at the port of import does not ipso facto give the importer a right to take the delivery thereof. Eicher Tractors Ltd [2000 (122) ELT 321 (SC)] 10.The respondent s submission is that the phrase the transaction value read in conjunction with the word pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on the basis of data available in India. If the phrase the transaction value used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14.It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules. 15.The Assistant Collector in this case determined the value of the imported goods under Rule 8. The question is whether he should have determined the transaction value under Rule 4 at the price actually paid by the appellant for the 1989 bearings. Naturally, if Rule 4 applies to the facts of this case, the Assistant Collector's reasoning under Rule 8 must, by virtue of language of Rule 3(ii), be set aside. 4.5 In view of the law clearly laid down by the Apex Court, we are not in position to agree with the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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