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TMI Blog2023 (10) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... House Hold Appliances, Mumbai. Vide communication dated 22.07.08, the Territory manager of M/s OM House Hold Appliances, informed that they have visited the CFS, Peta and confirmed that material are original Corelle and Corningware" products. They have also confirmed that they are official importers of said brand and expressed their wiliness to furnish details of import cost of such products. However, in the impugned order no reliance was placed on the import price furnished by M/s OM House Hold Appliances. 2. In the meantime, appellant had approached the Hon'ble High Court of Kerala for provisional release of goods. When Customs Authority made a submission that there is a disparity between the items packed and the item declared in the bill of entry, to find out the facts, the Hon'ble High Court appointed an Advocate Commissioner vide order dated 19.09.2008. The Advocate Commissioner conducted inspection of the goods and submitted a report. The Customs authority proceeded with the valuation through chartered engineer and on completion of the inspection, show cause notice was issued on 13.01.2009. 3. Heard both sides and perused the records. 4. The learned Counsel submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is civil appeal for the following reasons. Value is derived from the price. Value is the function of the price. This is the conceptual meaning of value. Under Section 2(41), "value" is defined to mean value determined in accordance with Section 14(1) of the Act. Section 14 of the Customs Act, 1962 is the sole repository of law governing valuation of goods. The Customs Valuation Rules, 1988 have been framed only in respect of imported goods. There are no rules governing the valuation of export goods. That must be done based on Section 14 itself. In the present case, the Department has charged the respondent-importer alleging mis-declaration regarding the price. There is no allegation of mis-declaration in the context of the description of the goods. In the present case, the allegation is of under-invoicing. The charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word "value" is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14(1). The value to be declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department has to prove it by evidence or information about comparable imports. For proving under-valuation, if the Department relies on declaration made in the exporting country, it has to show how such declaration was procured. We may clarify that strict rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts' proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Commissioner of Customs, Cochin reported in 2011 (267) E.L.T. 543 (Tri.-Bang.) where it is held that this kind of valuation of imported goods is unsustainable. Learned counsel also drawn our attention to the order of this Tribunal in the case of New Techno Graphics Vs. Addl. Commr. of Customs & C.Ex., Hydrabad reported in 2008 (222) E.L.T. 260 (Tri. Bang.), Commissioner of Customs, Calcutta Vs. South Indian Television reported in 2007 (214) E.L.T. 3 (S.C.), Rabindra Chandra Paul Vs. Commissioner of Customs (Preventive), Shillong reported in (2007) 3 Supreme Court Cases 93, Varsha Plastics Private Limited and Another Versus Union of India and others reported in (2009) 3 Supreme Court Cases 365 and Gajra Bevel Gears Vs. Collector of Customs, Bombay reported in (2000) 10 Supreme Court Cases 215. 7. Learned DR or Revenue submitted that based on the intelligence report gathered by Special Intelligence and Investigation Branch, the goods were detained and on inspection of the goods, consignment and the packing list showed considerable discrepancy and also undervaluation. During investigation matter was taken up with the Authorized importer of Corelle brand items. The scrutiny of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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