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TMI Blog2009 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs (Adjudication), Mumbai was upheld and whereby the Tribunal dismissed both the appeals preferred by the appellants holding that the appellant was fully aware and was made known about the materials placed before the authority and he had full opportunity to deal with the documents submitted by the witness. The Tribunal upheld and confirmed the reasoning and the conclusions of the Commissioner for passing the order dated 31.12.2003. By the aforesaid order passed by the Tribunal, a fine of Rs. 5 lacs in lieu of confiscation of the goods and penalty of Rs. 10 lacs was imposed on the appellant firm, and also a penalty of Rs. 5 lacs imposed on Ratanlal under the provision of Section 112(a) of the Customs Act imposed by the Commissioner of Customs (Adjudication) was upheld. 2. The entire proceeding arises out of a contract of importation of cloves of the bulk quantity of 300 MTs at US Dollars 2600 PMT CIF, Mumbai. It was alleged that the appellants herein entered into a contract with M/s. Ketan Trading Company, Singapore on 23.11.2000 for import of cloves. The goods were described as `cloves-Zanzibar/Indonesia' meaning thereby cloves of Zanzibar/Indonesian origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6300 between 6.11.2000 and 26.3.2001. It was also indicated that several of the importers admitted that the cloves were imported by them at various prices ranging between US Dollars 5050 to US Dollars 5500 during the aforementioned relevant period. During the course of investigation, the partner of the appellant was also questioned. In that process, he admitted that the original contract was with M/s. Ketan Trading Co., Singapore for supply of 300 MTs and it was signed in November, 2000 and that he was having only a photocopy of the said contract. He stated that the international market price of cloves in the beginning of 2001 was only US Dollars 2900 to US Dollars 3000 and that in February, March-April the price went up to US Dollars 5000 depending upon the quality. As regards the invoice bearing No. 624/2K- 01 dated 7.2.2001 issued M/s. IJIM ASIA in the name of M/s. Ketan Trading Co. showing consignment of 24.538 MTs of cloves at the rate of US Dollars 5600, he stated that one consignment was imported by him under bill of entry dated 24.2.2001, which was the same consignment mentioned and shown against invoice dated 7.2.2001. 8. It was also stated that while seeking clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the counsel appearing for the appellant was however refuted by the learned counsel appearing for the Commissioner of Customs. His submission was that the appellant could not produce the original contract said to have been entered into between M/s. Ketan Trading Company and the appellant in which the price of the goods was allegedly agreed upon at US Dollars 2600 PMT. He pointed out that the document dated 23.11.2000 of M/s. Ketan Trading Co. is not a contract and therefore no reliance could and should be placed on the said document to arrive at a finding that in fact the appellant had supplied the aforesaid cloves for Ketan Trading Company at US Dollars 2600 PMT. He also submitted that the findings and conclusions arrived at by the Commissioner of Customs (Adjudication) as well as by the Tribunal are findings of fact and the same should not be interfered with by this Court. 15. In the light of the aforesaid submissions we have perused the documents on record. A perusal of the relevant documents would indicate that the issue that arises for our consideration is as to how the value of the goods, in question, was to be computed. In other words whether the price of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not involve special discounts limited to exclusive agents; (d) objective and quantifiable data exist with regard to the adjustments required to be made, under the provisions of rule 9, to the transaction value. (e) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which (i) are imposed or required by law or by the public authorities in India; or (ii) limit the geographical area in which the goods may be resold; or (iii) do not substantially affect the value of the goods; (f) the sale or price is not subject to same condition or consideration for which a value cannot be determined in respect of the goods being valued; (g) no part of the proceeds of any subsequent resale,disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Rule 9 of these rules; and (h) the buyer and seller are not related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule (3) below. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i of a quantity of about 300 MTs. A bare perusal of the said document would indicate that the same is not a contract which was entered upon between the parties and it is merely a certificate issued by M/s. Ketan Trading Co. in favour of the appellant. 19. We have extracted hereinbefore, the relevant part of the provision of Section 14 (1) (a) of the Customs Act and the relevant part of Rule 4, Rule 5 and Rule 10A of the Customs Valuation Rules. Section 14 of the Act relates to valuation of goods for the purpose of assessment and inter alia provides that the value of any goods chargeable to duty of customs would be deemed to be 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 the course of international trade where the seller and the buyer have no interest in the business of each other or one of them has no interest in the business of the other and the price is the sole consideration for the sale or offer for sale. By inserting sub-Section (1A) of Section 14 which was inserted with effect from 16.8.1988, it was provided that subject to the provisions of sub-Section (1) of Section 14, the price ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procurement of cloves to the appellant under the ten Bills of Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the parties and it is merely a certificate issued by M/s. Ketan Trading Co. 22. The respondent department has also relied upon the contemporaneous documents like the Weekly Bulletin of Spices Market and also the Public Ledger. The Weekly Bulletin of Spices Market published by the Trade Information Services of the Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the price of Indonesian cloves on 24.11.2000 was US$ 4765 PMT and that of Zanzibar cloves was US$ 4650 PMT. Such bulletin also indicates that by 23.12.2001 the price of Zanzibar cloves had reached Rs.6100/- PMT. The Public Ledger which is also considered as International Publication of Report indicates that the price of cloves in the international market on 27.11.2000 was US Dollars 4700 which reached US Dollars 6300 on 26.3.2001. 23. We are also satisfied with the records produced before us that the nature of business o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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