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TMI Blog2023 (7) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... luation cannot be varied. This issue is no longer res-Integra in the appellant s own case this Tribunal has decided the matter in their favour which is reported at M/S. WELSPUN CORP. LIMITED VERSUS COMMISSIONER OF CUSTOMS, MUNDRA [ 2018 (12) TMI 173 - CESTAT AHMEDABAD . ] where it was held that the manner of computing the physical weight was not the most scientific one inasmuch as the physical weight was arrived at by first arriving at the tare weight of the truck trailer and thereafter arriving at the weight of the truck trailer with the steel plates loaded on it. The demand in the present case is not sustainable. Hence, the impugned order is set aside appeal is allowed. - Customs Appeal No. 11564 of 2018- DB - Final Order No. 11569/2023 - Dated:- 24-7-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri, Vishal Agarwal Ms. Dimple Gohil, Advocate appeared for the Appellant Shri Ajay Kumar Samota, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that on carrying out weight of H.R. steel plates it was found that the physical weight is in excess to the weight mentioned in their import doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el plates in the present case. It is obvious that when a theoretical weight is taken by adopting a formula the same will never be matching exactly with the physical weight of the goods. Therefore, due to this minor increase or decrease in the weight valuation cannot be varied. The very same issue in the appellant s own case has been considered by this Tribunal, in the judgment cited above wherein the Tribunal has passed the following order: 6 . We have carefully considered the submissions made by both sides and perused the record, we find that the two primary issues that arise for our determination are whether : (i) the department was right in demanding differential Customs duty by re-computing the assessable value in respect of the alleged un-declared excess weight to the tune of 2605.480 metric tones, in respect of the HR Plates imported by the appellant; (ii) whether the alleged undeclared excess quantity of HR plates was liable to confiscation under Section 111(d), (j), (l), (m), (n), (o) of the Customs Act; and the appellant are liable to consequent penalties. 7. We are of the view that the demand for the differential duty is not sustainable both on f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would become redundant. 14. It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules. 8.1 The ratio laid down in the aforesaid judgment applies in all fours even under the amended Section 14 and the Customs Valuation Rules, 2007. Under the amended provisions the transaction value has been defined in Section 14 to mean the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation. The transaction value so declared by an importer, is required to be adjusted in accordance with the provisions of Rule 10. The transaction value post its adjustment in terms of Rule 10 is required to be accepted as stipulated in Rule 3(2) subject to the exceptions provided for therein. It is nobody s case that price is not the sole consideration or that any of the exception provided for in the proviso to Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty involved on excess weight does not exceed Rs. 25/-, the declared weight may be accepted. As per point No. 10 of the said manual, when excess weight over prescribed allowance is noticed the weight and value of the consignment should be proportionately increased on the bill of entry and the license debited with the full rate or value so re-determined. (iii) In view of the guidelines of the appraising manual, following practice will be followed in this Commissionerate. (a) In all kinds of cargo, including scraps, no addition will be done upto 1% deviation in the actual height than the declared weight, but the value of excess goods will be loaded in the total assessable value and appropriate duties will be recovered. (b) If the variation is above +/-1%, value will be loaded with adjudication with appropriate redemption fine and penalty. 9.2 It appears from the said Public Notices that the weight variation up to 1% is to be accepted and ignored irrespective of the nature and type of the commodity. We are unable to persuade ourselves to accept this proposition. In our view there cannot be a thumb rule in such cases. The extent of permissible variation between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not in dispute that the contracts that the appellant had entered into with its overseas supplier provided for invoicing based on the theoretical weight basis of 7.85 kgs/m3. A copy of one such purchase order has been annexed at page 130 of the appeal memorandum. The supplier s invoice, Mill Test Certificate as also the bill of lading which are at pages 183, 184 and 185, have all arrived at the weight on the said theoretical basis by multiplying the volume (length breadth width) into density i.e. 7.85. 9.6 The weight of the consignment covered by the two notices in dispute is 72919.113 metric tonnes, which has been declared in the theoretical basis as envisaged in the supply contract as also in the Indian Standard specifications and the Japanese Standards specification. As against this, the alleged excess quantity arrived at on a physical weighment basis, is 2605.480 metric tonnes. In percentage terms the difference works out to 3.57% over the declared weight which is well within the prescribed standard variation of +5%/-2.5% envisaged in the Indian Standard specifications. 10. In our view, undisputedly, when steel plates are globally traded based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order, on the premise that the difference between the declared and the actual weight being more than 1% would not have come to the notice had physical weighment had not been done, is completely untenable. We find that the documents filed along with the bill of entry such as the packing list, mill test certificate clearly state that the weight declared was a theoretical one. It is beyond our comprehension as to how suppression can be alleged when the importer has categorically declared that the weight declared in the import documents is on a theoretical basis. Besides, as the alleged variation is within the permissible limits prescribed in the Indian Standards specification and there is no dispute as to the correctness of the transaction value, there was no cause for initiation of any adjudication proceedings either for enhancement of value and/or imposition of fine and penalty. 14 . We accordingly set aside the impugned order and allow the appeal with consequential reliefs if any, in accordance with the law. 5. In view of our above discussion and finding coupled with the judgment in the appellant s own case cited (supra), the demand in the present case is not su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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