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TMI Blog2024 (7) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the deemed value in the ordinary course of trade, where the seller and the buyer should not have any interest in the business of each other and the price should be the sole consideration for the sale or offer for sale. In the case in hand, the appellant M/s. NICO had entered into contract with the overseas suppliers for importation of the scrap items in question. Pursuant to the contractual norms, the goods were supplied by the overseas entities under the cover of commercial invoices, bearing the reference of description of goods, quantity, price etc. On the basis of the import documents, the appellant had filed the B/Es before the jurisdictional Customs Authorities for duty assessment and for clearance of the imported consignments for home consumption. It is not the case of Revenue that over and above the contractual amount, the appellant had paid any other amount either to the overseas supplier or any other person in context with importation of the subject goods. There is no evidence on record in this context. Further, Revenue has also not alleged that the appellant had any interest in the business of the overseas suppliers and vice-versa. It is a settled position of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the ISRI specification from various overseas suppliers during the disputed period. The value declared by M/s. NICO at time of clearance of the respective import consignments does not appear to be the actual and correct transaction value. Scrutiny of the records recovered/ submitted during the investigation also revealed that, M/s. NICO after April 2006 i.e., after initiation of the investigation against other importers of similar goods, started declaring higher invoice value at the time of importation. Apart from direct import of the said goods from foreign supplier, the appellant had also purchased some consignments of the said goods on High Seas basis from the High Seas Sellers. 1.3 On conclusion of the investigation, a detailed show cause notice (SCN) dated 31.03.2008 was issued to M/s. NICO and other appellants, proposing for rejection of the declared value of the goods and redetermine of the same under Section 14 of the Customs Act, 1962 read with Rules 3,6 and 8 of the Customs Valuation (Determination of Price of the Imported goods) Rules, 1988(for short, referred to as CVR, 1988); recovery of duties of customs short paid along with interest; confiscation of the imported go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the proof of retraction had not been submitted before him; whereas, copies of the retractions along with the postal receipts were duly submitted with the reply dated 01.12.2011 and also this was pointed out in the submissions dated 24.01.2019, again enclosing therewith such letters of retraction. Learned Advocate submitted that the adjudicating authority has completely ignored the appellant s replies/submissions, together with the documents annexed thereto and has passed the impugned order in the most perfunctory manner. He further submitted that the said persons had during their cross examination held in the course of adjudication, had clearly stated that the statements were not their true and voluntary statements. Thus, he submitted that since the statements were retracted and that the deponents had in the cross examination not stood by the statements, the said statements were not reliable piece of evidence. In this context, the learned Advocate has relied upon the judgments delivered by the Hon ble Supreme Court, in the case of Mohtesham Mohd. Ismail vs. Spl. Director, Enforcement Directorate -2007 (220) E.L.T. 3 (S.C.)and by the Hon ble Delhi High Court, in the case of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no differential duty payable by the appellant. 3.4 He also submitted that in a similar case investigated by the same investigating agency viz., DRI, Ahmedabad, in respect of import of goods made by Baheti Metals Ferro Alloys, Pushpak Metal Corporation and Maliwal Impex P. Ltd and ors., Show Cause Notice F.No. DRI/ AZU/ INV-7/2006 dated 30.9.2008 for the same period i.e., 2003 to 2006, proposing enhancement of value was issued by DRI; that the said Notice was confirmed by the Commissioner of Customs, Kandla by Order-in-Original No.KDL/COMMR/33/09-10 dated 31-3- 2010; that the enhancement of value was done on the basis of the same Circular No.14/2005 dated 16-12-2005 of Directorate of Valuation, which is relied upon in the present case. He submitted that the said Order-in-Original dated 31.03.2010 has been set aside by the Tribunal, in the order, reported as Pushpak Metal Corpn.Vs. Commissioner of Customs, Kandla 2014 (312) ELT 381(Tri.-Ahmd.). Thus, he contended that the transaction value at which the importers in the said case had imported goods, similar to the goods imported by the appellant, stand accepted by the Tribunal. He also contended that the Tribunal s Order (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents based on two Contracts dated 20-12-2005 are totally untenable in law. The Commissioner has arrived at the said erroneous finding, because he has not considered and has not taken into account the appellant s reply dated 17-6-2014, which clearly contains the explanation in respect of the said two contracts. The Commissioner has completely ignored the explanation given by the appellants in their reply, explaining the facts and circumstances, justifying the two different prices of the contracts entered on the same day. He also submitted that the two contracts of the same date are not in respect of the one and the same consignment but are two different contracts for two different consignments. The Commissioner has seriously erred in presuming and proceeding on the basis, as if, there were two contracts for the same consignment, which had two different prices, one higher and the other lower and that the appellant had concealed the contract with the higher price and shown the lower price. The Commissioner has erred in proceeding on the totally baseless presumption that the two contracts were for the very same goods of the same quantity. The two contracts were for two different consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the bulletin published by the London Metal Exchange (LME). According to the department, the transaction of metallic scrap is dependent upon prevailing prices of prime metal declared in the LME and are arrived at after deducting certain percentage of discount for the impurities found in the scrap. In this case, the department has considered the Scrap specification circulars issued by ISRI and parameters of valuation of aluminium scrap fixed by the Director General of Valuation (DGOV) in the Alert Circular No. 14/2005 dated16.12.2005, for arriving at the discount band for the disputed scrap items. Further, the department has also relied upon the e-mails and letters issued by the High Commission of U.K. to conclude that the appellant had suppressed the actual transaction value by resorting to under-valuation of the imported scrap items and that the differential price was paid to the overseas supplier through illegal channels. We find that the valuation of imported goods for the purpose of assessment is contained in Section 14 ibid, which mandates that the value of goods shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale for deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has pleaded that retracted statements cannot be accepted as evidence for confirmation of demand and the said retraction was immediately sent through postal department for delivery in the office of DRI. The adjudicating authority in the impugned order has chosen for not to consider the retraction letter on the ground that looking at the same, it cannot be inferred that the same were received by the DRI. We are of the view that the said approach of the adjudicating authority is incorrect as the reason for not considering the retraction appears to be presumptive in nature as no evidence has been produced to show that the DRI was not in receipt of the said letters. Further, we also find that the appellants in their reply to the SCN and subsequent letters addressed to the department, had specifically stated about the retraction with the supporting evidence. However, in the impugned order, the learned adjudicating authority has not recorded any observations with regard to such submissions made by the appellant. Be that as it may, we note that statements cannot be the sole reason to confirm the charge of undervaluation and the same has to be corroborated with documentary evidence. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority as well as before us has submitted a comparison chart, reflecting the prices of goods imported by them vis- -vis Baheti Metal (supra) and Pushpak Metal Corpn. (supra). By relying upon such chart, it was contended that the prices declared for the impugned goods by the appellant are either higher or at par, with the prices of the said contemporaneous imports made by the said importers, and hence, is comparable. Ongoing through the comparison chart, we are in agreement with the submissions made by the appellant that the import prices declared by them are indeed comparable, with the prices declared by the above named contemporaneous importers. We note that in the case of M/s Baheti Metal (supra), prices declared by them were found identical to prices declared by other importers. The Final Order dated 24.11.2011 passed by the Tribunal in the case of Baheti Metal Others, reported as Pushpak Metal Corporation (supra), on the identical issue of import of the same goods, in allowing the appeals in favour of the appellants therein was accepted by the Central Board of Excise Custom (CBEC) which is evident from the letter dated 25.06.2013, addressed by OSD of the Judicial Cell, CBE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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