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TMI Blog2022 (12) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... oods are packed in the uniform packing of 25 Kg bags whereas on physical verification, the impugned goods were found packed in Jumbo bags of 600 Kgs each without any making and weight details, thus the consignment was not as per the packing list. Further, it was also noticed that the appellant -importer declared the CIF Value USD 450/- PMT, which found very low as compared to PLATTS price for the relevant period and also to the data available on NIDB. The sample of the said impugned goods imported, drawn and were sent for testing at Central Excise & Custom Laboratory, Vadodara. As per the test report, in one sample's percentage of moisture is 16.2 and sample is of prime grade PVC Resin. The % of volatility in the other three sample was abysmally low and varies between 0.04 to 0.08. In all the four sample K-value was more or less identical and all the samples are of prime grade PVC Resin. It appears that the imported PVC Resin is off "prime grade" and not of "off grade" as declared by the Appellant. 2. On this basis, Appellant was issued show cause notice dtd. 23.09.2010 proposing to demand differential duty, as also to confiscate the goods under Section 111(d) and (m) of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was transacted. There are correspondences with overseas supplier for the quality, quantity and value of the goods in question. The overseas supplier had agreed for the negotiated price and thereafter only forwarded Proforma Invoice and LC for remittance was opened, which are on record. The analysis report of prime grade PVC Resin of supplier is submitted to department along-with previous Bill of Entry for 55 containers imported for Prime Grade. As informed by supplier and offered the material was of PVC Resin Wet/Off Grade. It is identified by supplier and offered to Appellants. Relevant correspondence has been submitted vide letter dated 19-03-2010. The prime Grade PVC Resin does not contain any moisture and volatile matter is less then 0.3 % and purity is 99.7 %, which has been clarified in Appellant's letter dated 05-04-2010. Appellant has clarified that report states "moist powder" for Sr. No,2 of test Memo, whereas "prime grade" does not contain any moisture. The PVC content of the prime grade is 99.70% + whereas the report states that the PVC Content was 83.6% in respect of product mentioned at Sr. No.2 of test Memo. No details of such PVC content is mentioned for the rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, as the case may be, in course of international trade, where seller and buyer have no interest in business of each other and price is the sole consideration for sale or offer for sale and that where such value cannot be determined under provisions of Rule 3(i) of Customs Valuation Rules 2007, the value shall be determined by proceeding sequentially through Rules 4 to 9 of Customs Valuation Rules. Thus, where transaction value is not available or may be rejected for valid or justified reasons, then, such price shall be determined in accordance with Customs Valuation Rules 2007. Rule 3(i) of Customs Valuation Rules 2007 shows that For purpose of the said Rules, value of imported goods shall be "Transaction Value" and Rule 3(ii) provides that if the value cannot be determined under the provisions of Rule 3(i), then, such value shall be determined by proceeding sequentially to Rules 4 to 9 of Customs Valuation Rules 2007. Rule 3(1) is that transaction value of imported goods shall be price actually paid or payable for goods when sold for export to India, adjusted in accordance with Rule 10 of Customs Valuation Rules 2007. However, Revenue has compared which is not comparable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... USTRIES LTD. (xvi) 1996 (81) E.L.T. 195 (S.C.) - BASANT INDUSTRIES Vs CC, Customs 8. He also submits that the adjudicating authority has not correctly appreciated the facts and has applied NIDB Data for re-determination of the imported goods being valued. The Settled law is that declared value cannot be enhanced merely on basis of NIDB data when the Value of impugned goods are declared correctly in B/E. Every seller and buyer entered into some agreement to sell and purchase of goods on transaction, which cannot be rejected comparing such prices of some other transaction. Thus, Revenue has neither followed proper procedure to reject declared value nor determined Assessable Value in accordance with Custom Valuation Rules, 2007. He placed reliance on the following decision:- (i) 2021 (376) E.L.T. 743 (Tri. - Del.) - B.B.M. IMPEX PVT. LTD vs CC(P), New Delhi (ii) 2015 (330) E.L.T. 799 (Tri. - Chennai) - TOPSIA ESTATES PVT. LTD. v/s CC (iii) 2015 (329) E.L.T. 406 (Tri. - Del.) - UMRAO SINGH PAWAN KUMAR v/s CCE (iv) 2015 (317) E.L.T. 295 (Tri. - Del.) - CC v/s VIRASAT ELECTRONICS (v) 2013 (298) E.L.T. 290 (Tri. - Mumbai) - AUTO STORES v/s CC (vi) 2013 (297) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting, not testing relevant parameters, quantity of remnants not mentioned, delay in re-testing and there are other parameters like density, VCM in residual PPM, absorbing amount of plasticizer for 100Gms resin, degree of polymerization has not been tested. We also find that the appellant had requested for cross-examination of the Chemical Examiner. However, no such opportunity was granted to them.In the present proceeding the Test reports are the only evidences with the Revenue to say that imported goods are "Prime Grade", therefore, adjudicating authority was not right in rejecting the cross-examination of the chemical examiner. 11. Revenue relied upon the case law of Reliance Cellulose Products Limited v. CCE, Hyderabad 1997(93)ELT 646 (SC) (supra) to argue that chemical report of the departmental chemical examiner cannot be brushed aside. Para 12 of the Apex Court judgment in the case of Reliance Cellulose Products Limited v. CCE, Hyderabad (supra) is reproduced below : - "12. These orders are now under challenge before this Court. We were referred to a number of test reports obtained by the appellant from various persons and on the basis of these opinion, the reports of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of goods, the off grade material can not be construed as prime material and on this basis the price can not be same. On our this view also the price enhanced by the revenue is not correct and legal. 14. We also find that the value has been enhanced by adopting the value of contemporaneous imports. However, there is no admission of Appellant admitting to undervaluation, or any evidence of any extra financial consideration apart from the declared transaction value, paid to the overseas supplier. Further, there is no evidence that the appellant and overseas supplier are related parties or that the invoice value was not the transaction value. The Department has failed to show any contemporaneous evidence of higher price, and thus the transaction value cannot be rejected, as held by the Hon'ble Apex Court in Commissioner Central Excise v. Sanjivani Non- Ferrous Trading Pvt. Ltd. - (2019) 2 SCC 378 = 2019 (365) E.L.T. 3 (S.C.) and Commissioner of Customs v. South India Television Pvt. Ltd. - (2007) 6 SCC 373 = 2007 (214) E.L.T. 3 (S.C.). 15. Further, in the present case, particularly, when the invoice price of the appellant was not disputed on the basis of any evidence of wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the following manner and to this extent; a. After the payment of the dues to the creditors, as per the resolution plan, all the liabilities of the said stakeholders prior to CIRP against the Corporate Debtor shall stand permanently extinguished after the approval of the resolution plan. We further hold that other claims including Government/Statutory Authority, whether lodged during CIRP or not, shall also stand extinguished against the Corporate Debtor after the approval of the resolution plan. We further hold that contingent/unconfirmed dues shall also stand extinguished;" As per the above order of NCLT, we find that dues of government, if any, shall stand extinguished. Similar view was also expressed by the Hon'ble Supreme Court which was referred in the NCLT order in para 16. Which is reproduced below: "16. As far as reliefs and concessions claimed by the resolution applicant, the law has been well settled by the Hon'ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited and Ors. reported in MANU/SC/0273/2021 in the following words: I. "The legislative intent behind this is, to freeze all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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