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TMI Blog2022 (3) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... higher than the appraisal price given in the Metal Bulletin of January 2012 for production and export of March 2012. The London Metal Bulletin prices of subsequent date 26.03.2012 giving the appraisal price for production and exports of May 2012 to be in the range of US $ 715 to 730 per MT, cannot form the basis of enhancing the value and for rejecting the transaction price. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 87530 of 2013 WITH Customs Appeal No. 87787 of 2013 - A/85191-85192/2022 - Dated:- 1-3-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND MR. P. DINESHA, MEMBER (JUDICIAL) Ms. Shamita Patel, Advocate, for the Appellant Shri Manoj Kumar, Deputy Commissioner, Authorised Representative for the Respondent ORDER These appeals are directed against order in appeal No 336,337/MCH/AC/Gr IV/2013 dated 03.06.2013 of Commissioner Customs (Appeals), Mumbai Zone-I. By the impugned order Commissioner has held as follows: ORDER 8. In view of the above discussions and findings, I find no reason to interfere with the impugned order. The said appeals are dismissed as above. 2.1 Appellant had imported Cold Rolled Ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter. It further provides that the proper officer shall have powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include contemporaneous imports at a significantly higher value. In the present the proper officer has not followed the said procedure laid down in the said Rule 12. In the present case there is no evidence of any contemporaneous imports at a higher price and hence the rejection and enhancement of the declared value is totally arbitrary and untenable in law. Tribunal in the case of Sumeet Exports (India) v CC 2019 (4) TMI 1093-CESTAT MUMBAI, in absence of any evidence of contemporary imports at higher price, there is no basis to doubt and reject the transaction value. On the contrary they had produced evidence of contemporary import which has been discarded by Commissioner (Appeals). Even going by the Metal Bulletin appraisal prices which has formed the basis for determination of enhanced, there is no justification for rejecting the Appellant's transaction value because revenue has relied upon metal bulletin for the subsequent period and not the one that is for the period when the imports were made. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words the deemed value contemplated under Section 14(1) would prevail when the price declared does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation........ In view of the above, the price prevailing as per the L.M.B. issue dated 26.03.2012 becomes binding on the assessing officer to load the value to @ US$ 721.64 US$ 722 PMT respectively, for both the Bills of entries. This is further strengthened by the fact that both the parties are relying on the prices reflected through L.M.B albeit different dates. I also find that the case of Bill of entry of Rajan Kumar and Bros. Impex vide No. 6429986 dated 31.03.2012, as cited by the appellants cannot be taken for comparison as the goods therein are of different specification. 7. The appellants have pleaded about their business association with their overseas supplier since December 2006, which should be taken into consideration for favour of price benefit In light of the observation by the Apex Court in the matter of Basant Industries vs Additional Commissioner of Customs, Mumbai as reported at 1996(81) ELT 195 (SC) wherein it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 10A of CVR, 1988 contemplates that where the department has a reason to doubt the truth or accuracy of the declared value, it may ask the importer to provide further explanation to the effect that the declared value represents the total amount actually paid or payable for the imported goods. Needless to add that reason to doubt does not mean reason to suspect . A mere suspicion upon the correctness of the invoice produced by an importer is not sufficient to reject it as evidence of the value of imported goods. The doubt held by the officer concerned has to be based on some material evidence and is not to be formed on a mere suspicion or speculation. We may hasten to add that although strict rules of evidence do not apply to adjudication proceedings under the Act, yet the Adjudicating Authority has to examine the probative value of the documents on which reliance is sought to be placed by the revenue. It is well settled that the onus to prove undervaluation is on the revenue but once the revenue discharges the burden of proof by producing evidence of contemporaneous imports at a higher price, the onus shifts to the importer to establish that the price indicated in the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 = 2007 (209) E.L.T. 326 (S.C.)]. Further in case of Sanjivani Non Ferrous Trading Pvt Ltd [2019 (365) ELT 3 (SC)], Hon ble Supreme Court observed as follows: 10 . The law, thus, is clear. As per Sections 14(1) and 14(1A), the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in that provision. Section 14(1) is a deeming provision as it talks of deemed value of such goods. Therefore, normally, the Assessing Officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods. This, ordinarily, is the course of action which needs to be followed by the Assessing Officer. This principle of arriving at transaction value to be the assessable value applies. That is also the effect of Rule 3(1) and Rule 4(1) of the Customs Valuation Rules, namely, the adjudicating authority is bound to accept price actually paid or payable for goods as the transaction value. Exceptions are, however, carved out and enumerated in Rule 4(2). As per that provision, the transaction value mentioned in the Bills of Entry can be discarded in case it is found that there are any imports of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties need to be tested against the prevailing market prices on the date of contract rather than any subsequent price. The Appellant's contract was entered into on 19-1-2012 and the goods were shipped in March 2012. The contract price was US $ 713 per M.Ton. The appraisal price given in Metal Bulletin dated 30.01.2012 for production and exports of March 2012 of Chinese Mills, was in the range of US $ 685-695. Thus the Appellant's price was even higher than the appraisal price given in the Metal Bulletin of January 2012 for production and export of March 2012. The London Metal Bulletin prices of subsequent date 26.03.2012 giving the appraisal price for production and exports of May 2012 to be in the range of US $ 715 to 730 per MT, cannot form the basis of enhancing the value and for rejecting the transaction price. In case of Drunkey Exports P Ltd [2004 (165) ELT 417 (T-Kol)] tribunal has held as follows: 6. As regards the valuation we find that the Tribunal in the case of Prabhu Dayal Prem Chand reported in 2003 (156) E.L.T. 922 (T) has held that transaction value of copper scrap is not to be rejected on the basis of the prices indicated in L.M.E. Bullet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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