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TMI Blog2024 (2) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... troller has issued No Objection for the release of the said goods. Further, the lower authorities have re-determined the value of the impugned goods based on the values declared by other importers without providing any basis for this decision and relying on certain imports which are clearly not contemporaneous in as much as the Bills of Entry pertaining to those imports were filed during the period November 2010, whereas the impugned import is of the year February 2011 and there is no material produced by the department that amounts over and above the invoice value were paid with respect to transaction value in question. It has been consistently held by the Tribunal that NIDB data alone is not sufficient for re-determination of value. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) has rejected the appeal and upheld the order of the adjudicating authority. 2. Briefly, the facts of the present case are that the appellant filed Bill of Entry No. 2708858 dated 03.02.2011 for the clearance of 1337 cartons of 'Deodorants', declaring the value as Rs.16,27,025/-. Based on intelligence, the officers examined the imported goods on 04.02.2011 and found that the imported goods were deodorants of various brands like Lomani, Remi, Maxi and Santago. As per Board s Circular No.8/2010-Cus. dated 26.03 2010 the import of cosmetics through Tuticorin port is not allowed. The said Board's circular clearly specifies that 'the cosmetics shall be imported as per Rule 133 of the Drug and Cosmetics Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) rejected the appeal. Hence this appeal. 3. Heard both sides and perused the materials on record. 4. Ld. Counsel appearing for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding judicial precedents on the identical issue. He further submits that the goods which were imported were available in stock lot and after hard and sustained bargaining, the supplier agreed to sell the imported goods at the price mentioned in the invoice; that the invoice value is the transaction value for the present case; that the lower authority has re-determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty alone, as they do not fall under the list of prohibited goods, further they have been allowed to clear their goods in the past on payment of duty, as such the Customs department cannot take different stands, according to their own whims and fancies, to the prejudice of the importer. He further submits that the goods imported by the appellant are not prohibited goods as per Rule 133 read with Rule 43-A of the Drugs Cosmetics Rules, 1945 or any other law for the time being in force. The imported items are not intended for medical use and therefore covered under Schedule-D. He further submits that the Schedule-D covers all substances which are not intended for medical use and its scope cannot be given a restricted meaning to exclude c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) High Link Exporters Pvt. Ltd. Vs CC New Dehi 2020 (373) ELT 554 (Tri.-Del.) (iii) Unik Traders Vs CC Tuticorin - (2023) 9 CENTAX 306 (Tri.-Mad.) 7. Ld. counsel further submits that department s contention that the goods were inadmissible due to port restrictions is also a curable defect. Ld. counsel further submits that at that time Tuticorin was not a designated port for import of the impugned goods but now Tuticorin Port is designated for import of impugned goods. 8. On the other hand, Ld. A.R for the Revenue reiterated the findings in the impugned order. 9. After considering the submissions of both the parties and perusal of materials on record, we find that the goods imported by the appellant are, admittedly, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.R.P and R.S.P price on the packages are concerned. We find that this defect is curable one and would not amount to contravention of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 as held in the case of ABB Ltd. and High Link Exporters Pvt. Ltd cited supra by the appellant. 10. As far as violation of the port restriction is concerned, we find that during the relevant time, the Tuticorin was not an authorized port for import of the impugned goods but subsequently, the said port has been authorized for import of the impugned goods. Therefore, there is a violation with regard to port restrictions. For that violation, we think it appropriate to impose a penalty on the appellant under Section 111 (d) of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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