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TMI Blog2020 (12) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... have given reasons to hold that the relation has indeed affected the price. In case, the department did the same, then the onus would have been transferred to the importer - proviso under Rule 3(a)(b) states that provided that in applying the values used for comparison, due account shall be taken of demonstrate a difference in commercial levels, quantity levels, adjustments in accordance to provision of Rule 9 of these Rules and cost incurred by the seller in sales in which he and the buyer are not related. The submissions of the appellants were required to be considered and reasons, if any, for rejecting the same should have been recorded. It was found that no discussion and findings have been given by both the authorities on the Annexures-B, C, D submitted by the appellants. Time Limitation - HELD THAT:- The appellants have taken inordinate time to submit reply to the questionnaire given by Revenue to them in 2003. Department has also not adhered to the time frame given vide CBEC circular 11/2001. In the end there was rush to complete the proceedings. Learned counsel for the appellants submits that no clarification whatsoever was sought from the Appellant as to the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. 2. The learned counsel for the appellants submits that there are grave and manifest errors of both law and fact apparent on the face of the impugned Orders given the (a). Arbitrary reference of the Appellant's case of Special Valuation Branch (SVB) and (b) the arbitrary and whimsical loading of the transaction value without any proof of their influence of price and based on wholly incomparable data. Commissioner of Customs (Appeals) lost sight of the fact that such reference is ex-facie erroneous and perverse because there is nothing on record to even remotely suggest that there existed a prima facie justification for referring the case to the SVB for further inquiry into the declared transaction value. In fact, the Department did not even send the goods imported by the Appellant for testing to ascertain the quality/description of the goods. Ld. Commissioner of Customs (Appeals) failed to appreciate that the AC, SVB issued the Questionnaire and Circular No. 04/2003 without any jurisdiction; therefore, the Order-in-Original is founded on proceedings initiated without any jurisdiction and legal basis and is ab initio legally suspect and bad. 2.1. The learned counsel fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination indicates that the relationship between the parties influenced the price; Para 2 of Interpretative Notes to Rule 4(3) categorically states that such examination will only be required where there are doubts about the acceptability of the price. Where the proper officer has no doubts about the acceptability of the price, it should be accepted without requesting further information from the importer. He submits that the onus to prove that the price has been influenced by the relation is on the Revenue. He relies upon CC Vs Prodelin India 2006(10) SCC (280) and CC Vs Hewlett Packard Ltd 1999(108) ELT 21. 2.4. The learned counsel submits that the Original Authority rejected the Appellant's declared transaction value without a shred of evidence, let alone cogent evidence, of influence of relation on the price of imported goods; appellant submitted all the details; there is nothing on record to show that similar or identical goods were being imported at a higher price; department wrongly relied upon, the data from the Chemical Weekly Report for the following reasons. (a). The Appellant themselves submitted the Report, available with them, to the Department in a bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d observed; in addition, the Order-in-Appeal does not examine or discuss if the requirements of Rule 4(3)(a) were met in the instant case; whether a prima facie case existed for reference to the SVB; whether the original authority has examined the circumstances to indicate influence on price and considered the evidences placed on record by the Appellant; whether the Department should have obtained a test report for the imported goods; whether the data available in the Chemical Weekly Report related to comparable goods etc; the impugned order does not even give a reasoned finding on the very first issue of whether the Appellant and the overseas supplier are related parties or not. 2.7. Learned Counsel also relied upon the following cases to support his arguments as above, (i) Skoda Auto India Pvt. Ltd. vs. Union of India Ors. (Bombay High Court): 2009 SCC Online Bom 1653 (ii) M/s. Dalmia Cement (Bharat) Limited vs. Assistant Commissioner of Customs Ors. (Madras High Court): WP No.9656 of 2019 (iii) HD Motors Co. (India) Pvt. Ltd. vs. CC (CESTAT, New Delhi, Principal Bench): 2018 SCC Online CESTAT 8480 (iv) CC (Import) Mumbai vs. M/s. Sujata Verbatim Ltd. (CESTAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions before Commissioner (Appeals) stating that: The quantities reflected in chemical weekly report were always for less than metric ton whereas the appellants imported large quantities; the authority overlooked the quantity and purity and type of goods; Even than there was no deviation, the authority has adopted 50-190% enhancement taking highest price at which impugned goods were imported during the relevant period; The appellant submitted a statement showing maximum minimum rates per kg of impugned goods for relevant period in Annexure-B; The appellant submitted a statement showing price at which impugned goods were imported from various countries by unrelated buyers during the relevant period as Annexure-C; the prices mentioned therein approximate closely to the declared price; A statement of cost and selling price of imported LDPE / PE wax was enclosed as Annexure D, taking the selling price to unrelated buyer in India as base price. 6. We find that learned Commissioner (Appeals) has given brief findings and has not discussed the above submissions of the appellant and has not given any reasons for not accepting the same. We find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbent on the department to show as to how the relation between the appellants and their overseas sellers has affected the prices. Thereafter, the submissions of the appellants were required to be considered and reasons, if any, for rejecting the same should have been recorded. We find that no discussion and findings have been given by both the authorities on the Annexures-B, C, D submitted by the appellants. 8. We also find that the appellants have taken inordinate time to submit reply to the questionnaire given by Revenue to them in 2003. Department has also not adhered to the time frame given vide CBEC circular 11/2001. In the end there was rush to complete the proceedings. Learned counsel for the appellants submits that no clarification whatsoever was sought from the Appellant as to the relevance (or otherwise) of the Chemical Weekly Report before proceeding to rely on the Report; no opportunity of hearing in this regard was given to the Appellants. As per our discussions above, we find that the submissions of the appellant have not been considered. Under the circumstances, we find that the case needs to go back to the original authority for a proper examination of all the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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