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TMI Blog2023 (7) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant is lower than the actual value of at least one brand i.e. RCR, investigation officer ought to have directed local agent of RCR in India M/s Homemaker Enterprises, Haryana to disclose the import price of the said goods, when imported by them rather than taking assistance from Chartered Engineer as was done in the present case. Regarding the report submitted by the Chartered Engineer, the Chartered Engineer relied on the market value of goods in India to ascertain the assessable value. In view of above facts, the method adopted by respondent to reject the transaction value based on such report of Chartered Engineer seems to be without any legal basis. In the impugned order there is no reference to transaction value and the value paid by the importer for procurement of the goods. Further, if the transaction value is found not acceptable, the customs authority is bound to proceed sequentially under rule 5 to 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with the Rule 5, 6 and 7 even in the cases, where the transaction value is to be rejected under Rule 4. However, in the present case, the transaction value is rejected without co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of physical verification of the goods in the warehouse. The Customs authority proceeded with the valuation through chartered engineer and on completion of the inspection, show cause notice was issued on 03.01.2009. However, without considering the submissions made by the appellant, impugned order was issued. The appellant filed this appeal assailing the order. 2. Heard both sides and perused the records. 3. The learned counsel for the appellant submitted that there is no reason or justification to allege undervaluation. The goods imported by the appellant are of assorted size and as per the communication received by the Department during investigation, the price of the goods are not existing in the pricelist maintained by the manufacturer. The Learned counsel further submitted that the Adjudication Authority relied on the valuation report submitted by the chartered engineer, where the chartered engineer stated that he had adopted the value by visiting the local markets and collected data from Malls and such method of valuation is unsustainable. Learned counsel further submitted that the Customs Authority failed to discharge the burden of proof with cogent evidence and rejectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the Bill of Entry is 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 value in the export 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. 8 . Before concluding, we may point out that in the present case at the stage of show cause notice, the Department invoked Rule 8 on the ground that the invoice submitted by the importer was incorrect. In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transaction value. Utilization of the word the as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as glass wares of unique designs and special quality, showpieces etc. However, best possible efforts and utmost care have been attributed in valuing all such items. 6. Learned counsel further submitted that the method of valuation adapted by the adjudication authority based on the report of chartered engineer is illegal and unsustainable. Learned counsel draws our attention to finding of this Tribunal in the case of Al Riyaz Implex Vs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hod adopted by respondent to reject the transaction value based on such report of Chartered Engineer seems to be without any legal basis. 10. Further as per Para 37 of the impugned order, the adjudication authority held that since the declared value is less and the National Import Data Bank (NIDB) did not show any identical import, the Department was left with no option other than appointing a government approved Chartered Engineer for the valuation of the goods. As per the law laid down by the Apex Court in the case of Eicher Tractors Ltd. Versus Commissioner of Customs, Mumbai reported in 2000 (122) E.L.T. 321 (S.C.) and also in the case of Commissioner of Customs, Calcutta Vs. South India Television (P) Ltd. Reported as 2007 (214) E.L.T. 3 (S.C.), what should be accepted as transaction value for the purpose of assessment under Customs act is the price actually paid by the importer for the particular transaction unless it is unacceptable for the reasons set out in Rule 4, thus the Hon ble Supreme Court directs the customs authority to decide the validity of the particular value instead of rejecting the transaction value. In the impugned order there is no reference to transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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