Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs, Chennai vs Forte Garments on 6 December, 2001
Equivalent citations: 2002(79)ECC661, 2002(150)ELT622(TRI-CHENNAI)
JUDGMENT
S.L. Peeran, Member (Judicial)
1. This is a revenue appeal against order-in-appeal No. 91/97 dated 27.6.97 by which the Commissioner (Appeals) has accepted the declared value of the non-oven fabricated cotton unbranded material imported by the importer and the declared value in the Bill of Entry at US$ 4.65/mt. The Department initiated proceedings to enhance the value to US$ 10.68/mt. and based on the proceedings the Additional Commissioner in order-in-original confirmed to enhance and imposed fine of Rs. 1 lakh and penalty of Rs. 40,000/- under Section 112(a) of the Customs Act. Further, on appeal the importer produced the evidence of contemporaneous imports of the same material at US$ 4.65/mt. CIF Mumbai/Calcutta and one Bill of Entry of Chennai. The Commissioner (Appeals) sent a fax message seeking for clarification from Additional Commissioner of Customs, Mumbai regarding the value. It was clarified that the relied Bill of Entry had been finalised at US$ 4.65/mt. On the basis of such communication and in the absence of any evidence of contemporaneous import relied by revenue, the Commissioner (Appeals) accepted the importers cost. Against the said impugned order the revenue has come in appeal.
2. The revenue in this appeal have not produced any evidence of contemporaneous import of the same material from the same place, time and quantity at US$ 10.68/mt. However, they are merely mentioning that the adjudicating authority had given proof based upon the cost of one of the raw material alone and the declared value could not be acceptable.
3. Heard Shri. C. Mani, DR and Shri A.K. Jayaraj, Ld. Counsel for the respondent.
4. Ld. DR took us through both the orders and grounds of appeal and sought for confirmation of the order-in-original passed by the Addl. Commissioner by setting aside the impugned order.
5. Ld. Counsel read the order of the Commissioner (Appeals) and pointed out that the importer's 3 Bill of Entries which had been provisional assessed only for test purpose. But, however, after Commissioner (Appeals) got the clarification that the relied Bill of Entries had been finally assessed and in the contemporaneous import at higher value. He accepted the evidence produced by the importer. He submits that the revenue even at this stage have not produced any evidence of import on similar material at US$ 10.68/mt. He submits that the Additional Commissioner has laid down the transaction value in such circumstances is required to be accepted as held in the case of Eicher Tractors Ltd. v. CC, Mumbai as reported in 2000 (122) ELT 321 (SC). He submits that this order has been followed by the Tribunal in large number of cases. He seeks for dismissal of the appeal.
6. On a careful consideration we notice from para 11 of the impugned order that the Commissioner has got the relied Bill of Entries verified through the Customs house Mumbai, Calcutta and Chennai. The finding recorded in para 11 is reproduced :
"Taking the first point, I find that the three Bill of Entry cited by the appellants dated 29.12.95, 4.1.96 and 28.12.96 were rejected by the lower authority since the impugned goods were laid on board on 18.5.96 which was more than 90 days period prescribed under the valuation Rules. With regard to one other Bill of Entry dated 6.6.96 the lower authority observed that there was no indication of provisional assessment. Still she chose to ignore the same. She also noted that the Bills of Entry dated 12.6.96 and 14.8.96 were assessed provisionally, the basis of which was not known. From the copy of the Bill of Entry 4183 dated 10.7.96 it is seen that the goods were non woven fabricated cotton unbranded imported by the same appellant for which the value declared was 4.65 US $. In respect of the other Bill of Entry Rot No. 347/96 dated 12.6.96 the lower authority has observed that there is indication of provisional assessment against P D test/Bond. But the appellants have stated that the Bills of Entry were endorsed provisionally pending for test only. They have also enclosed copy of the test bond cancellation letter issued by the Customs authorities to contend that the bonds were executed only for carrying out chemical test. From the copies of the Bill of Entry No. 1858 dated 10.7.96 (Import Dept. No. 4183) pertaining to Invoice No. 9083 dated 5.6.96 as also Bill of Entry Rot No. 347/96 dated 11.6.96 pertaining to invoice No. 9071 dated 15.5.96 it is seen that the price quoted and accepted is US $ 4.65 CIF Bombay/Calcutta. These two Bills clearly show that the price of 4.65 US $ has been accepted by the relevant Custom House with provisional assessment against test Bond at Calcutta. The appellants have also produced copies of further Bills of Entry No. 9974 dated 28.12.95 at Bombay, No. 681/96 dated 15/18.11.96 at Calcutta, No. 662/96 dated 4.11.96 at Calcutta and 762/96 dated 20.12.96 at Calcutta all beyond a period of 90 days but in all these cases, the prices mentioned for similar goods - non-woven coated fabrics unbranded at US $ 4.00 to 4.65 per metre compare well with the price declared in the subject case. Further, in response to the reference made by the Additional Commissioner of Customs, Group III Chennai on 17.1.97 and 28.1.97, the Additional Commissioner of Customs Mumbai has clarified vide Fax message received on 27.6.97 that the value seen for the said material P.U.Lining i.e. (Non-woven fabric (sic) is between US $ 4.00 to US $ 4.65 in CIF and that the said goods have been assessed provisionally for test bond and not for P.D. bond for valuation. He has also stated that in the absence of contemporaneous imports, the value declared have been accepted finally. In view, of the above clarification which supports the appellants's contention the lower authority's rejection of the contemporaneous value is not correct in the absence of any basis for the same. The communication F.No. S 41172/96-A3 issued to the appellants with regard to imports at Calcutta and the letter sent by Appraising Section Customs proposing cancellation of the test bond also supports their contention. In view of the above, the value declared by the appellants in view of the contemporaneous imports is acceptable."
7. We notice that for the purpose of enhancing the value the revenue is required to produce contemporaneous imports from the same country pertaining to the same goods and the same time and quantity and quality in order to reject the transaction value. In the present case the importer had produced 3 Bill of Entries which had been assessed and accepted by the authorities by which the present goods were imported. The Commissioner (Appeals) had got this verified also and having found that there is no evidence produced by the revenue in enhancing the value he accepted the importers claim. Even before us the revenue has not produced any evidence except to contend that the Addl. Commissioner's (Appeals) had got this verified also and having found that there is no evidence produced by the revenue in enhancing the value he accepted the importers claim. Even before us the revenue has not produced any evidence except to contend that the Addl. Commissioner's order is correct and the same is required to be accepted.
8. On a careful consideration we are not aggreable with the contentions raised by the revenue. In order to enhance the value and to reject the transaction value the revenue is required to substantiate their claim by producing evidence which is contemporaneous in nature. In the absence of any evidence the order passed by the Commissioner (Appeals) is correct and requires to be confirmed. There is no infirmity in the impugned order. There is no merit in this appeal and hence the same is rejected.
(Order dictated and pronounced in the open court)