9911796707
TMI Blog2002 (8) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962]. (ii) I order enhancement of total value of betel-nuts from Rs. 45,31,765/- to Rs. 1,05,96,367/- and I demand the differential duty amount of Rs. 24,25,841/- under Section 28 of the Customs Act, 1962. (iii) I order confiscation of goods totally valued at Rs. 1,05,96,367/- covered under subject Bills of Entry under Section 111(m) of the Customs Act, 1962. However, I allow them to be redeemed as payment of fine of Rs.10,00,000/- (Rupees ten lakhs only) under Section 125 of the Customs Act, 1962. (iv) I impose a penalty of Rs. 2,00,000/- (Rupees two lakhs only) on M/s. Gupta Exports, Chennai under Section 112(a) of the Customs Act, 1962. (v) I order that an amount of Rs. 16,15,990/- paid by M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er : Rs. Value declared by the importers Rs. Enhancement of value Rs. Differential Duty R.F. Rs. Penalty Rs. 45,31,765/- 1,05,96,367/- 24,25,841/- 10,00,000/- 2,00,000/- In this case, Commissioner has resorted to Rule 5 of the Valuation Rules, 1988 and rejected the invoice value. While enhancing the value, the department has compared the contemporaneous imports made by M/s. Gandhi Exports, Mumbai some time in 10/1999 wherein only a quantity of 49.90 MTs. of whole grade betel-nuts were imported through Mumbai Port at a value of US $ 1100 PMT. The department has also relied upon import made by another Importer M/s. Diamond Traders, Chennai wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the same. They also contended that the contemporaneous imports cited in the case of M/s. Gandhi Exports, Mumbai was some time in October 99 whereas their imports were in January/February, 2000 and hence it cannot be considered as contemporaneous imports. Further, in the case of M/s. Diamond Traders relied upon by the department, the quantity involved was only 14 tonnes whereas in the present case, the quantity is 255.65 MTs which is much higher and hence it is not comparable. Similarly the quantity imported by M/s. Diamond Trading Company was only 30 MTs and cannot be compared to the quantity imported by them which is more than 250 MTs. Ld. Counsel also relied on the various judgments including the decision of this Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the case of CC v. Sunsip Ltd. reported in 2001 (127) E.L.T. 203 (T), M/s. Vipin Enterprises v. CC, Kandla reported in 1999 (111) E.L.T. 211 (T). In counter, the ld. Counsel submits that the Commissioner in para 14 gave findings that goods are comparable and the reason has not been given by the ld. Commissioner. Therefore, he submits that the order of the Commissioner enhancing the value should be set aside and the transaction value mentioned in the Bills of Entry by them has to be accepted. The ld. Counsel submitted that the transaction value can be discarded only in case the goods are covered within the mischief of Rule 4(2) of the Customs Valuation Rules, 1988 and in that situation alone, Rule 5 could be resorted to by the ld. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by M/s. Diamond Traders cannot also be considered as contemporaneous import for the reason that the quantity involved was only 14 Tonnes, whereas the quantities involved in the present cases were much more as indicted in the table on para 2 above. Further we find that in the case of Spices Trading Corporation v. CC, Madras (supra), it was held that stray incidence of import at higher value is not to be adopted totally ignoring other attending circumstances and that higher quantity imported is to get credence. It was also held therein that transaction value has to be adopted unless the department can produce the objective reasons and strong evidence that declared value was not bona fide and the burden is on the department that the declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond Traders and that of M/s. Gandhi Traders. We have already held that the importations made by these two parties cannot be considered as contemporaneous. It is also not the case of the department that there was clandestine remittance of value in excess of the invoice value and mutuality of interest existed between the two parties. In view of the above discussion and in the facts and circumstances of the case, we are therefore of the considered opinion that the department has not discharged the burden cast on them that the importers have misdeclared or under-valued the goods. We therefore, set aside the impugned orders and allow the appeals, with consequential relief, in accordance with the law." 6.In view of the well settled law laid by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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