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TMI Blog2023 (8) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... port by this Tribunal, no efforts were made by the Adjudication Authority to call for the records available in the data bank regarding said imports to verify the facts after sharing such information with appellant before de-novo adjudication. As regard the findings related to overseas remittance, the Adjudication Authority has stated that the importer did not produce statement covering the entire period of import. The Hon ble Supreme Court in the case of EICHER TRACTORS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [ 2000 (11) TMI 139 - SUPREME COURT] held that the transaction value cannot be rejected unless the imports attract any of the exceptions noted in Rule 3(2) of Customs Valuation Rules, 2007. Revenue has not been able to establish that imported goods attracts exception noted in Rule 3(2) of Valuation Rules. Regarding trade discounts claimed by the appellant, this Tribunal in M/S. OZURT SYSTEMS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS [ 2015 (11) TMI 1090 - CESTAT BANGALORE] considered the claimed discount at the range of 87% to 97% from the supplier s price list and following the judgment of Hon ble Supreme Court in MIRAH EXPORTS PVT. LTD. VERSUS COLLECTOR OF CUSTOMS [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of 53 consignments of opal glassware imported by the appellant. The details of the imports are given in the show cause notice as Annexure-A. On the perusal of the Order-in-Original, we find that the entire Order-in-Original is discussing only the statement given by the Managing Partner. In the findings portion on the evidences, we find that it does not deal anything about revaluation of the goods after rejecting the invoice value. We are unable to understand the logic of coming to a conclusion of undervaluation, without rejecting the transaction value. 5.1 Be that as it may the Adjudicating Authority has come to the conclusion that the partner of the firm has not retracted his statements and hence, they cannot dispute the authenticity of the documents resumed during the search of the premises. We find that the main thrust of the entire Order-in-Original was based upon the proforma invoices, quotations and pricelists recovered from the premises of the appellant company. The explanations given by the partner in his statements are not at all considered by the Adjudicating Authority. It is his finding that I also find that the noticees could not offer any satisfactory ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 In view of this, we find that the impugned order is not a speaking order. It is silent on many of the contentions raised by the appellants and has also not considered the binding decisions submitted by the appellant before him, more specifically the judgment of Hon ble Supreme Court in the case of Mirah International (supra). It is a settled law that the evidence of contemporaneous import value has to be produced by the revenue to bring home charge of undervaluation. In this case, the appellants having produced the evidence of contemporaneous imports, it should have been appreciated property by the Adjudicating Authority instead of dismissing it summarily. 5.3 In sum, we find that appreciation of evidence needs to be done by the Adjudicating Authority. In view of this, we set aside the impugned order and remand the matter back to the Adjudicating Authority to reconsider the issue afresh, after appreciating the evidences which may be led by the appellant before him. It is needless to mention that a conclusion be reached only after granting an opportunity of personal hearing. Appeals are allowed by way of remand. 2. As per ibid final order, this Tribunal remanded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme read with relevant notifications. Maintained in 2015 (323) ELT A79 (Supreme Court) Thus the counsel for the appellant submitted that the impugned order is issued in total violation of the directions of this Hon ble Tribunal. 4. Regarding allegation of undervaluation, Learned Counsel further submits that law is well settled that the burden of proving the charge of undervaluation is on the revenue by bringing on record cogent evidence of contemporary import, repatriation of extra money, existence of parallel invoices, admission of import etc. However, in the appellant s case there was no such evidence available on record to sustain the finding regarding undervaluation 5 Regarding discounts offered to appellant, Learned counsel submitted that there is no difference in the prices reflected in performa and commercial invoices. It is given based on the price list of the supplier and the counsel submitted that it is well settled that quotation/pricelist of the supplier cannot be the basis for customs valuation. The price was mutually agreed after negotiation with a view to market penetration and to compete with Chinese opal products. As per the terms of the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly held that neither Section 14(1) nor the Valuation Rules allow determination of the ordinary international value of the imported goods on the basis of date other than the price actually paid for the goods. There is no allegation nor finding that anything more than the price declared of the subject imported goods have been paid in the instant case. Hence, transaction value as declared, cannot be rejected and the Commissioner has erred in law in doing so. The onus to establish undervaluation of the goods, which was and is on the Customs Authorities, and shifted to the appellant, by methods known to law and in a satisfactory manner, as held by the Supreme Court in Sounds-N-Images v. Collector of Customs, 2000 (117) E.L.T. 538 (S.C.), cannot be said to have been satisfied in the instant case. Hence there is no justifiable legal basis or reason whatsoever not to accept the Transaction Value of the said goods declared by the appellant and determine the assessable value thereof on this basis. (b) Hon ble Supreme Court in Mirah Exports Pvt. Ltd. Vs. Collector of Customs reported in 1998 (98) E.L.T. 3 (SC) held that; 12. The legal position is well settled that the burden of provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant regarding contemporaneous import by this Tribunal, no efforts were made by the Adjudication Authority to call for the records available in the data bank regarding said imports to verify the facts after sharing such information with appellant before de-novo adjudication. As regard the findings related to overseas remittance, the Adjudication Authority has stated that the importer did not produce statement covering the entire period of import. However, on perusal of the statement recorded from the Managing partner, no question were put to him regarding any overseas remittance and also during the investigation, no attempt was made by the investigating officer to find out remittance through any other source to cover the alleged undervaluation. The repatriation of the amount mentioned in the impugned order over and above 53 LC payment cannot be made as excess payment since no such payment can be made by way of LC or by way of bank remittance. Regarding assessable value of contemporaneous import, the value declared by the appellant during relevant time is higher than the value of contemporaneous imports. When there is no evidence with respect to the under-valuation either by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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