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TMI Blog2008 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30-6-2003 passed by the Commissioner of Customs (Appeals), Custom House, Chennai. 2. Shri Rajesh Kumar Chander, learned advocate appeared on behalf of the appellants and Shri K.S. Reddi, for the revenue. 3. We heard both sides. 4. The brief facts of the case are as follows. The appellants imported 21 Nos. second-hand automotive equipment from Robert Bosch, Germany, their collaborators for research purposes free of charge. The appellant declared for assessment purposes the value certified by Chartered Engineers. The department did not accept the same and advised the appellants to get valuation done by Inspecting Agency M/s. S. G. S. India Ltd. The appellants spent Rs. 50,673/- for obtaining the said certificate. The Adjudicating Authority adopted depreciated value as per Chartered Engineer's certificate on the ground that the same was comparatively more than the value determined by M/s. S. G. S. India Ltd. and determined by the Chartered Engineer M/s. Klaus Walter Bohringer Stuttgart. Out of the 21 second-hand machines, it was found out that two machines were not covered by EPCG licence. With effect from 1-4-1999, these machines could be imported only under specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in holding that merely because the goods were supplied free of cost, there was no contract in place. The finding that the appellant could have stopped the import is not tenable because there was already a contract between the parties whereby the appellant had to carry out research and development services of M/s. Robert Bosch and in respect of such services, the appellant would be entitled for a remuneration in foreign exchange DM 10,00,000 per year. In terms of the said contract, the machinery was supplied free of cost. Hence, the finding that there was no firm contract in place and therefore, the appellant could have stopped the importation of the goods is devoid of any merit. (iii) It is not correct to say that the appellant had not taken any steps to obtain licence from DGFT in terms of Policy circular dated 29-7-1999. In fact, the appellant had already taken steps in terms of the said Circular and the DGFT issued Special Licence for import of goods in negative list vide Licence dated 11-2-2000. (iv) Since the appellants had received the licence for the import of the said goods from the DGFT, the question of confiscation of subject goods did not arise and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless it is found to be not genuine. In absence of any allegation that the parameters of transaction value under Rule 4 are not in any way satisfied there is no choice with the authorities but to assessee the goods based on the transaction value. (ix) There is no hard and fast rule that in the case of second-hand machinery, the value has to be done only on the basis of manufacturer's price in the year of manufacture subject to allowance of depreciation. The Tribunal has time and again stated that even in the case of second-hand machineries, the declared value can be accepted unless there are circumstances set out in Rule 4(2) or Rule 4(3) of Customs Valuation Rules. The age of the machinery is ranging from 11-31 years and therefore, the export price quoted by the Chartered Engineer was the actual one and cannot be compared to the deducted value of the customs which restricts the allowance of depreciation for 7 years only. (x) The year of manufacture of machinery was very much available in the Chartered Engineer's certificate issued in Germany. But, the department directed the appellants to produce a certificate from M/s. SGS. Having obtained the certificate, the department fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls (supra) case, the valuation based on foreign supplier's Chartered Engineer's certificate upheld, especially as its genuineness was not challenged. It was also held that Chartered Engineer's certificate of foreign supplier cannot be rejected on the basis of another certificate obtained by the department after filing of bill of entry, especially when genuineness of former was not doubted. The above case was upheld by the Supreme Court reported in 2005 (182) E.L.T. A92 (S.C.). (xiv) In CC, New Delhi v. Swan Press (supra) case, the Chartered Engineer's certificate supporting invoice value produced by the importer was held to be acceptable. (xv) In CC, Chennai v. DTE Exports Pvt. Ltd. (supra) case also it has been held that Chartered Engineer's certificate cannot be accepted or rejected in part. This opinion has also been upheld by the Supreme Court as reported in 2003 (158) E.L.T. A75 (S.C.). (xvi) It was also brought to our notice that the Hon'ble Supreme Court in the party's own case had held that the transaction value has to be accepted by following the case of Eicher Tractors Ltd., Haryana v. CC, Mumbai - 2000 (122) E.L.T. 321 (S.C.) = 2001 (1) SCC 315. 6. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all for any purpose. It appears that the year of manufacture has been taken from the Chartered Engineer's certificate and value has been arrived at by the depreciation method by giving depreciation for 7 years. The appellants have strongly objected to this method of valuation. They have produced several case-laws to urge that foreign Chartered Engineer's certificate should be accepted or rejected in toto and there cannot be a partial acceptance or rejection. Moreover, no reasons have been given by revenue for rejection of the certificate given by the Chartered Engineer of the foreign supplier. We find that the value declared by the importer has been certified to be reasonable in Col. 3E of the Chartered Engineer's, certificate. In such circumstances, we do not find any reason to reject such a value. There is no allegation that some fraud has been committed in obtaining such a certificate. In these circumstances, we hold that the value declared by the supplier and certificate to be reasonable by the foreign Chartered Engineer has to be accepted in the absence of any evidence to show that there was mala fide or fraud in obtaining such a certificate. Hence, we allow the appeal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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