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TMI Blog2024 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Rule 3 of the Customs Valuation Rules. That is to say, the revenue must have concrete evidences of contemporaneous imports, which are comparable in all respects like the quantity, size, description, country of origin, etc. It is also a matter of record that the authority himself has admitted that even during search/investigation in the case of the appellant, no incriminating documents was found and thus, the allegation has just remained unproved. Transaction value - The case of the revenue is that there were contemporaneous imports, which had resulted in mis-declaration /undervaluation of the transaction value; the contemporaneous imports itself indicate that the revenue was in fact having all the details of the comparable cases of imports which had resulted in the issuance of show cause notice. Now the original authority in order to justify resorting to rule 8, candidly admits that rules 4 to 7 could not be applied for various differences, including description itself, which only tempts us to accept the appellant s plea that the very allegation for not accepting the transaction value based on comparable imports itself lacks merit because nothing was comparable; and the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss sheet of different colours at US$1.52 to 2.92/Sq.Mtr.; 3.1 The Directorate of Revenue Intelligence (DRI) appears to have inferred based on the alleged contemporaneous imports (from NIDB data): - (i) Clear Drawn Sheet Glass sizes 1.69 mm and 1.8 mm were declared @ $0.57/SQM during the period from May 2006 to June 2008, whereas, the actual prices were ranging between $0.92 to $1.45 per SQM and other importers were also clearing at a higher value than that declared by the appellants; and (ii) In respect of 5 mm Reflective Glass, the appellants had imported at USD 4.68/SQM from M/s.T.G.Changjing Glass Co. Ltd., China whereas, from other suppliers, the appellants have imported at USD 2.17/SQM to USD 2.92/SQM. 3.2 It was the further case of the revenue that the evidences in respect of import of 5 mm Reflective Glass from other Chinese suppliers revealed that the actual rate was ranging between USD 3.2/SQM and USD 4.34/SQM. 4. Thus, the above was pointed out in the Show Cause Notice dated 04.05.2011 issued by the revenue, thereby proposing to reject the declared/transaction value of the appellant and, consequently, to re-determine the same by invoking larger period of limitation. In so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under proviso to Section 28(1) of the Customs Act, 1962 in the instant appeal and the other connected appeals. Consequently, this appeal and other connected appeals filed by the appellant have to be dismissed being time barred . (2) In M/s.Uniworth Textiles Vs. Commissioner [2013 (288) ELT 161 (SC)] it has been held that, in view of the settled position of law and in view of the fact that the Department has not brought on any iota of evidence of the involvement of the importer/appellants in the fraudulent activities, concerning collusion, wilful mis-statement and suppression of facts with reference to value of imported goods, in our considered view, the demand could not have been issued for extended period. In the case in hand, it is an admitted fact that the show cause notice has been issued beyond the period of one year from the date of filing of Bills of Entries and payment of duty on the declared value. Thus, the proceedings are wholly barred by limitation of time as per the dictates of Section 28 ibid ; 8. Without prejudice to the above, he has contended that : (i) Non-supply of relied upon documents, (ii) Non appearance of appellant/ representative cannot be a reason for non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of similar goods was at higher prices the data of which should be available with the revenue and therefore, there was no justification for non-supply of relied upon documents on the flimsy ground of non-appearance of the appellants or their representative. (vii) NIDB data is retrieved from the EDI system maintained by the Department and when the NIDB data is used, it is required that copies of relevant Bills of Entry, invoices, etc., are provided to the affected party failing which, such NIDB data could not be used as evidence at all. (viii) The learned Original Authority has recorded that two sets of invoices showing different prices were recovered from one M/s.Rajita Herbals Pvt. Ltd., which was used as evidence to enhance the values declared by the appellants in respect of six Bills of Entry; (ix) The recovery of two sets of invoices from other importers cannot be a ground to discard the appellant s transaction value and fasten the charge of mis-declaration, as long as no incriminating documents were recovered from the appellants; (x) The Apex Court in the case of M/s.South India Telecom Pvt. Ltd., relied upon by the learned Original Authority, decided that the validity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. M/s.Granite India [2023 (6) Centax 13 (SC)]. 12. Per contra, Shri M.Ambe, Ld. Deputy Commissioner has supported the findings in the impugned order. He also drew our attention to paragraphs 8, 9, 10 of the impugned order, wherein, specific findings on the undervaluation have been recorded by the Adjudicating Authority. 13. We have considered the rival contentions and we have also carefully perused the documents placed on record. We find that the only issue to be decided by us is, whether the revenue was justified in rejecting the declared value and re-determining the same? 14. With regard to the limitation, the original authority has primarily alleged that there was a huge difference between the declared value and the contemporaneous imports found during investigation, it was held to be a justifiable and sufficient reason to attribute willful misstatement of facts insofar as the price of the goods imported by the appellant are concerned. The requirements of the statute to invoke the larger period of limitation are fraud, suppression, willful mis-statement of facts, but we are afraid when it comes to the price, the revenue has to prove beyond hilt that the prices so declared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been many requests for supply of relied upon documents for effective rebuttal, in tune with the principles of natural justice. However, as urged by the ld. Advocate, we agree that there the relied upon documents have not at all been given to the appellant for effective rebuttal. It appears that most of the documents furnished to the appellant were incomplete. In this regard, we find that the Hon ble Bombay High Court has in the case of Johnson and Johnson Ltd. Vs. Dy. Chief Controller of Imports Exports reported in 2003 (154) ELT 370 (Bom) held that the non-supply of adverse materials to the affected person constitutes violation of Rules of natural justice, in the following words: 12. In order to conform natural justice, the decision maker must not act on the material coming on record subsequent to the stage of hearing or after oral hearing, which the other side has not seen and had no chance to comment on it. It is an elementary rule of principles of natural justice that party must be given a fair opportunity to collect and controvert any relevant material brought forward to his prejudice. It is needless to mention that the breach of principles of natural justice constitutes breac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value admitted by the supplier. It thus boils down to the fact that whether the transaction value has been rejected as per the law. Other than NIDB data, no other evidence has been let-in by the revenue; it is thus required to be established that such data which is like a stock- document in the armory could be held to be sacrosanct and is well accepted by higher judicial fora. 19. Further, determination of transaction value is required to be done sequentially; the lower authority himself has admitted in so far as re-determination of the value in respect of at least 88 bills of entry are concerned, that Rules 4, 5, 6/6A, 7/7A cannot be applied for reasons of either differences in the quantum of imports or the period of import or the description of the goods, to resort to the Residual Rule 8 of the customs valuation rules. It only proves that the comparison is not between comparables. The case of the revenue is that there were contemporaneous imports, which had resulted in mis-declaration /undervaluation of the transaction value; the contemporaneous imports itself indicate that the revenue was in fact having all the details of the comparable cases of imports which had resulted in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the value referred to above and not merely the invoice price. On a plain reading of Section 14(1) and Section 14(1A), it envisages that the value of any goods chargeable to ad valorem duty has to be deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). It is made clear that Section 14(1) and Section 14(1A) are not mutually exclusive. Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. The value is deemed to be the price at which such 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 and the price is the sole consideration for the sale or for offer for sale. Therefore, what has to be seen by the Department is the value or cost of the imported goods at the time of importation, i.e., at the time when the goods reaches the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion [emphasis added by us in bold] 21. The following emerge from the above landmark decision of the Apex court: the invoice price is not sacrosanct, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value, Unless the evidence is gathered in that regard. The question of importing Section 14(1A) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value, Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Under- valuation has to be proved. If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. 22. We do not find fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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