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TMI Blog2020 (8) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... e of nickel is hardly 1% which is a matter of normal variation not calling for any adverse inference. There are no merits in the appeal - appeal dismissed - decided against Revenue. - Customs Stay Application No. 50547 of 2019 and Custom Appeal No. 51587 of 2019 And Customs Stay Application No. 50548 of 2019 and Custom Appeal No. 51589 of 2019 - Final Order Nos. 50747 – 50748/2020 - Dated:- 17-8-2020 - Mr. Anil Choudhary, Member (Judicial) And Mr. C. L. Mahar, Member (Technical) For the Assessee : Shri B. L. Narasimhan, Sh. Rachit Jain and Ms. Vijaya Nandini, Advocates For the Department : Shri Sunil Kumar, Authorised Representative ORDER ANIL CHOUDHARY: M/s Jindal Stainless Limited is a registered manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Curico Marketing had determined valuation of goods on the basis of Nickel content. In view of alleged mis-declaration of percentage of Nickel content in the imported goods, the declared transaction value of the goods appeared liable for rejection under Rule 3 read with Rule 12 of the Customs Valuation Rules, 2007. It may be seen that the supplier in this case has calculated the assessable value of goods as per following formula:- Value = (Total weight) x (% of Nickel content) x (rate of Nickel) Therefore, adopting the same formula but with correct content of Nickel, assessable value of the imported goods was proposed to be determined for final assessment of Bill of Entry No.4861639 dated 10.03.2014. 4. The SCN vide C. No. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase order and commercial invoices. ii) The value was enhanced by the Adjudicating Authority solely on the basis of CRCL test report without any cogent evidence to prove that the transaction value was not genuine or did not represent the correct transaction value. The prices agreed between the exporter and the importer is evident from the invoices and sales contract. There is no evidence that the appellant had paid over and above the transaction value to the foreign supplier or both purchaser and supplier are related persons in terms of Rule 3 of the CVR, 2007. iii) The request of the importer regarding re-testing of the samples through the same CRCL or testing in their plant has not been accepted. Samples drawn at the Customs Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract of respondent with the overseas supplier M/s Cuirco Marketing, the value of the goods is determined on the basis of nickel content. It is evident from the invoice wherein they have mentioned the gross weight and also mentioned the net weight of nickel alongwith the percentage of nickel content. The basis of amount charged by the seller is the rate of nickel per tonne. As the Adjudicating Authority have also adopted the same formula based on the test report to CRCL and re-determined the assessable value, hence the same is justified and cannot be faulted. (d) It is further contented that non consideration of the prayer of the respondent for retesting of goods and observation of learned Commissioner (Appeals) that the small portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. It is further relied by the Revenue on Board Circular No. 43/2017-Cus as regards guidelines for testing, are not applicable for the goods imported in the year 2014 and subjected to test in the same year. It is further contended that at one point of time respondent took the stand that procedure for drawal of sample was incorrect which has lead to erroneous test report. Later on, they have requested for re-testing of the sample drawn at the same time by any other Laboratory or by CRCL. Reliance is placed on the ruling of Apex Court in the case of Reliance Cellulose Products Ltd., vs. Collector of C. Ex., Hyderabad 1997 (3) ELT 646 (SC) wherein it was held that test report of chemical examiner and Chief Chemist of the Government, unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction value has been arbitrarily rejected in violation of the provisions of Section 14 of the Customs Act, 1962 read with the Valuation Rules. Further, the adjudication order is vitiated for not permitting the retesting, inspite of the prayer of the importer assessee. Further, we find that as per the report of CRCL the variation in the declared percentage of nickel is hardly 1% which is a matter of normal variation not calling for any adverse inference. Accordingly, we find that there is no merit in these appeals. Accordingly, these appeals by Revenue are dismissed. The respondent importer is entitled to consequential benefits, in accordance with law. Stay applications also stand disposed of accordingly. (Pronounced on 17.08.2020) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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