9911796707
TMI Blog2005 (3) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial or that any amount in excess of the said value was paid to the supplier. The Revenue has failed to establish; any ground under Rule 4(2) for rejecting the transaction value. In the circumstances, it is incumbent on the Customs authorities to accept the transaction value under Rule 4(1) r/w Section 14(1) of the Customs Act as consistently held by this Tribunal in a line of cases including Spice Communications (supra). For the reasons already noted, we set aside the enhanced valuation done by the Commissioner under Rule 8 and direct that the subject goods be assessed to duty on the basis of the transaction value declared by the importer. The Commissioner has imposed a fine of Rs. 7.09 lakhs for redemption of the confiscated goods valued at Rs. 47,31,375/- (C F). Now that the transaction value of Rs. 20,07,360/- (C F) of the goods stands accepted, the redemption fine requires to be reduced proportionately. We reduce the same to Rs. 3,00,000/- (Rupees Three lakhs only) after considering all relevant factors u/s 125. The Commissioner has imposed a penalty of Rs. 3.30 lakhs on the importer u/s 112(a) of the Customs Act. We have already rejected the Department s allegation of misdec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted goods were not covered under the definition of "capital goods" under the relevant EXIM Policy and attracted the restriction for import under para 2.17 of the Foreign Trade Policy 2004-2009 read with DGFT's Policy Circulars No. 16/2003, dated 29-9-2003 and 19/03, dated 11-11-2003. The respondent, therefore, took the view that the subject import without specific licence was in contravention of Foreign Trade Policy and hence the goods were liable for confiscation under Section 111 of the Customs Act read with Section 3(3) of the Foreign Trade (D & R) Act, 1992. Further, the importer was suspected to have deliberately undervalued the goods apart from having imported them in contravention of law, thereby attracting the penal liability under Section 112(a) of the Customs Act. 2. On the above basis, a show-cause notice was issued to the appellants for (i) rejecting the transaction value of the goods and determining their value as US $ 1,03,730 = Rs. 48,23,445/- (CIF) on the basis of contemporary import price [US $ 576 (CIF) per unit] of "CANON Heavy Duty colour photocopier CLC 700" imported through Kolkata port in August, 2004 (ii) confiscating the goods und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs, Mumbai - 2000 (122) E.L.T. 321 (S.C.) and Tolin Rubbers Pvt. Ltd v. CC, Cochin - 2004 (163) E.L.T. 289 (S.C.). The Tribunal's decision in the case of National Imaging Systems v. CC [Final Order No. 156/2004-NB(A), dated 25-2-2004] was also relied on in this connection. It was argued that the transaction value of the goods was the price paid or payable. The supplier's invoice was conclusive proof of the price paid or payable. All other documents produced by the importer also supported the transaction value declared by the importer. The department could not gather any incriminating material from the importer or the supplier to prove that the former undervalued the goods. Merely because any contemporaneous import price for similar goods was found to be higher than the value declared by the assessee, it could not be inferred, without comparing the year of manufacture, physical condition etc. of the machines, that the assessee had undervalued the goods. In this connection, counsel relied on the Tribunal's Final Order No. 18/05-NB(A), dated 31-12-2004 in Competent Business Machines v. CC, Tiruchirapalli [2005 (182) E.L.T. 426 (Tribunal)]. The value declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all items covered thereunder is U.S.A., Japan without itemwise mention of country of origin. The goods imported by the appellants are all of Japanese origin. It thus appears that the subject goods of Japanese origin have been compared with goods of American or doubtful origin. The subject goods were manufactured during 1995-2001 as per data produced by both the DR and the advocate. But no information is available as to the year of manufacture of the second-hand photocopier taken for comparison. The show-cause notice issued to the appellants admitted that the extent of usage would influence the price. However, it did not attempt any comparison of the subject machines with the machine imported through Kolkata port, with reference to year of manufacture or extent of usage. Such comparison is not forthcoming in the impugned order either. 5. We have examined the records and considered the submissions. The adjudicating authority has noted in his Order that the importer did not contest the enhancement of value. Ld. SDR has also submitted to this effect. However, it is seen that, in their reply to the SCN issued by the department, they contested the proposal for enhancement of value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner's finding that, by virtue of para 1A (4) of Foreign Trade Policy 2004-09, the DGFT's clarification in respect of para 2.17 of the previous Policy was applicable to para 2.17 of the present Policy (2004-09). It is an established position that DGFT is the authority competent to interpret/clarify provisions of Export & Import Policy of the Government of India. As per that authority's clarification, second-hand photocopier was a restricted item for import during the period relevant to this case and the same could be imported only under specific licence. The appellants have not even claimed, in the appeal, that their import is not under EPCG Scheme or that the DGFT's Policy circular is not applicable to the period of the subject import. Their only grievance is that the DGFT's clarification is not correct. They cannot challenge the DGFT's circular before us. We can only say that, under the relevant Import Policy as clarified by DGFT, specific import licence is required for second-hand photocopiers, even if the machines are less than ten years old. The machines imported by the appellants are covered by this restriction. Therefore, their import, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bill of Entry covering the contemporary import, we directed the SDR to produce the Bill of Entry and connected invoice. We have already noted our observations (vide para 4) with regard to the documents produced by the DR. Based on those observations, we find that the Revenue has not established that only comparables were compared. It is found that the subject goods of Japanese origin manufactured in 1995-2001 were compared with goods of doubtful origin whose year of manufacture or extent of use was not known. Hence, following the decision in Competent Business Machines (supra), we reject the Commissioner's comparison of the declared price of the subject goods with the price of the goods covered under Bill of Entry No. 201363. As rightly submitted by learned advocate, no good reason under Rule 4(2) was shown by the adjudicating authority for rejecting the declared value of the subject goods. Only after rejecting the transaction value on a ground specified under Rule 4(2) of the CVR and established by evidence, can the assessing authority proceed to determine the value of the goods by sequentially following Rules 5 to 7 as held by the apex court in the case of Eicher Tractors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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