Custom, Excise & Service Tax Tribunal
Marque Enterprises vs Cc, Amritsar on 18 February, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.3
Customs Appeal No.C/720/2008-Cus
(Arising out of OIA No.104/Cus/LDH/08 dated 20.08.2008 passed by the CCE(A), Chandigarh)
Date of Hearing: 07.05.2013
Date of Decision:
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Manmohan Singh, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
Marque Enterprises Appellant
Vs
CC, Amritsar Respondent
Present for the Appellant: Shri S.Kapoor, Advocate Present for the Respondent: Shri V.P.Batra, DR Coram: Honble Mrs.Archana Wadhwa, Member (Judicial) Honble Mr.Manmohan Singh, Member (Technical) Final Order No. 50572/2015 ORDER NO._______________ PER: MANMOHAN SINGH This appeal has been filed against the order in appeal No. 104/Cus/LDH/08 dated 20.08.2008 passed by the CCE(A), Chandigarh, vide which the Commissioner (Appeals has upheld the imposition of penalty and redemption fine by the original adjudicating authority.
2. In this case, it is seen that the appellant has imported 980 pieces of old and used monitors 17 from Germany. The goods were subjected to examination under first check procedure to ascertain physical condition of the goods and its relation to the declared value of the goods. On the basis of chartered engineers certificate, the goods were found old and used CRT monitors size 17. The year of manufacturer of these monitors was between 1999-2004 and the market value of the said goods was found to be Rs.8,23,900/-. On the basis of the value proposed by the chartered engineer, the value of the goods were enhanced to Rs.6,91,711/- for assessment purpose. It was also noticed that since these old and used items required a licence under foreign trade policy 2004-2009 and no licence was produced by the appellant and the goods were liable for confiscation, redemption fine and penalty. The adjudicating authority has confiscated the old and used CRT monitors size 17 valued at Rs.6,91,711/- under section 111 (d) of the Customs Act, 1962. However, an option was given to redeem the same on payment of redemption fine of Rs.1 lakh. A penalty of Rs.2 lakh was also imposed on the appellant.
3. The Commissioner (Appeals) has extensively gone through the order passed by the adjudicating authority as well as grounds of appeal taken by the appellant. The appellant took the plea that market enquiry was conducted at their back and no copy of chartered engineers report was given. The redemption fine and penalty have been imposed without calculating margin of profit and it is on higher side.
4. It is also observed from the records that the appellant waived issue of show cause notice and agreed to the order in original passed by the Additional Commissioner indicating that they accepted the finding in respect of non availability of licence/permission of DGFT for import of old and used monitors of different brands and manufactured in different countries. The appellants also did not challenge the value arrived at by the chartered engineer. They have actually also waived personal hearing with the request to decide the case based on documents available on records. Market value was arrived at Rs.8,23,900/- and after granting abatement the goods were assessed at Rs.6.91,711/-.
5. We find that the Commissioner (Appeals) has also relied upon the Tribunals judgement in the case of Commissioner of Customs (Prev.) vs. Rose Enterprises-2008 (223) ELT 270 (Tri.-Del.) wherein it has been held as under:-
6.1 The value of the goods assessed at Rs. 5,96,676/- was never challenged and was, in fact, accepted by the importer. If that be so, the redemption fine of Rs. 2 lacs, as imposed by the adjudicating authority, was far below the market value of the goods. There is no valid reason given by the Commissioner (Appeals), as to why has he chosen to interfere with such a lenient order of imposition of redemption fine passed by the adjudicating authority. The interference by the Appellate Authority would not be warranted in such cases in the absence of any illegality or irregularity or impropriety committed by the adjudicating authority in making the order. In the present case, the market price of the goods imported in violation of the foreign trade policy was Rs. 7.33 lacs and duty chargeable was worked out to Rs. 1,03,000/-. Therefore, redemption fine up to Rs. 6.30 lacs was imposable under Section 125 of the Act. The redemption fine of Rs. 2 lacs imposed by the adjudicating authority was, therefore, leaning on the lenient side. The Appellate Commissioner has, therefore, arbitrarily inferred with the order of the adjudicating authority imposing redemption fine of Rs. 2 lacs in respect of the goods assessed at Rs. 5,96,676/- and its order cannot be sustained.
7.?Penalty of Rs. 1 lac was imposed by the adjudicating authority after reaching a finding that, the importer had despite having the knowledge that the goods imported were restricted under the Policy, imported them without the required licence/permission. He has given valid reasons, in paragraph 11 of his order, for imposing the penalty of Rs. 1 lac under Section 112 of the said Act. Penalty not exceeding the value of the goods could be imposed in the case of the goods in respect of which any prohibition is in force under the said Act or any other law for the time being in force. In the present case, the goods were imported against the Foreign Trade Policy under which they were restricted goods and it could not have been imported without obtaining a valid licence/permission from the competent authority. Therefore, the penalty could have been imposed up to the value of the goods which was Rs. 5,96,676/-. Even if the goods were to be treated as other than prohibited goods covered by clause (ii) of Section 112 of the said Act, penalty could have extended up to the duty sought to be evaded, which in the present case was Rs. 2,85,271/-. Therefore, by no stretch of imagination, the penalty of Rs. 1 lac imposed by the adjudicating authority could have been treated as unjustified, much less harsh.
6. We have examined the submissions relating to non grant of personal hearing and valuation being arrived at their back. As per facts mentioned in the preceding paras, it clearly comes out that their plea about non grant of personal hearing is totally false. Further they have not raised any objection to valuation at appellate stage. This ground at this stage is not maintainable. Further import of goods without the authority of proper licence is also not contested. Further, when appellant waived his right to waive the SCN and defend against this, he has foregone his right to challenge the proposed action in SCN for ever.
7. Regarding appellants plea that higher redemption fine and penalty are imposed on them, we have also perused judgements quoted by the appellants and judgement quoted by the Commissioner (Appeals) as above. Judgement quoted by the Commissioner (Appeals) is akin to the facts of this case and clearly points out that in the circumstances of the case penalty imposed without authority of law/redemption fine imposed is minimal. Similarly, penalty of Rs.2.50 lakh arrived at with enhanced valuation and non production of licence is also reasonable. Judgements quoted by the appellants do not come to rescue them as imposition of redemption fine and personal penalty are justified (actually being minimal), when import was not made in accordance to policy making the goods smuggled one under section 2 (39) of Customs Act, 1962.
8. On the above facts and circumstances of the case, we find no merit in the appellants contention and reject the appeal.
(Pronounced in the open court on _________________)
(ARCHANA WADHWA) (MANMOHAN SINGH)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
mk
Per Ms. Archana Wadhwa
9. Having gone through the order proposed by my learned brother, I proceed to record a separate order as I do not find myself in agreement with the same.
10. The dispute in the present appeal relates to the value of old and used imported monitors and the quantum of redemption fine and penalty. As the facts stand detailed in the proposed order of learned Member (Technical), I do not repeat the same so as to avoid the redundancy.
11. The appellants have taken a strong objection to the fact that lower authorities have relied upon the Chartered Engineers certificate and some market inquiries which are conducted at their back and no copy of the Chartered Engineers report was given to them. Learned Member (Technical) has not accepted the above stand of the appellant on the ground that personal hearing was granted to the appellant by Commissioner (Appeals). However, I find that the appellants grievance is non-supply of result of market inquiry and copy of Chartered Engineers certificate and not of personal hearing before Commissioner (Appeals). As there is nothing on record to show that the appellants were associated with the market inquiry and the result of the same was given to the appellants along with a copy of Chartered Engineers certificate, I feel constrained to accept the above submission of the appellant.
12. In any case and in any view of the matter, the question required to be decided is as to whether such market inquiries or the Chartered Engineers certificate reflecting upon the cost of old and used monitor can be held to be a legal evidence so as to enhance the value of the imported goods. Admittedly, the goods in question are old and used and the value of the same depends upon number of factors like the usage of the goods and the condition of the same. The appellants have declared the value of same as 10676 Euros, i.e. Rs. 5,81,005/-. The same were accompanied by invoices issued by the foreign supplier and bill of lading.
13. Revenue has not adduced any evidence to first discard the declared value as incorrect. It is well settled law that the transaction value has to be adopted as the correct assessable value unless there is sufficient, tangible and positive evidence to show that such transaction value is not the correct value. In the present case, there is no such evidence on record to reflect upon the incorrectness of the transaction value. There is no evidence to show that the importer has paid any extra amount to the supplier of the photocopier other than the transaction value which is reflected in the invoice. As such, in my views the rejection of the transaction value without any reference to the evidence cannot be upheld. At this stage, I take note of the Tribunals decision in the case of CCE (Preventive), Amritsar vs. Bhawana Spinning Mills [2013 (289) ELT 504 (Tri- Del)] laying down that in the absence of any contemporary imports of the goods and in the absence of any evidence adduced by the Revenue to discard declared value, enhancement of the value is not acceptable. Reference can also be made to another decision of the Tribunal in the case of New Copier Syndicate vs. CCE, Hyderabad [2009 (245) ELT 434 (Tri-Bang)] and the dismissal of appeal by the Honble Supreme Court as reported in [2010 (254) ELT A 43 (SC)]. Reliance can also be placed on Tribunals decision in the case of Madhu Industries Ltd. vs. CC Ahmedabad [2008 (232) ELT 575 (Tri-Ahmd) as also in the case of Digitech Photocopier vs. CC Mumbai [2009 (91) RLT 68 (CESTAT-Del)]. In the case of Sri Venkatesh Enterprises vs. CC Tiruchirapalli [ 2005 (192) ELT 534 (Tri-Del)] Tribunal set aside the enhancement of value of old and used photocopier based upon the Chartered Engineers certificate. Similarly, in the case of N K Enterprises vs. CC Tuticorin [2005 (190) ELT 271 (Tri-Del)] enhancement of value of old and used photocopier machines on the basis of Chartered Engineers certificate was set aside.
14. It is further observed in the order of my learned brother that as the appellant had not contested the enhanced value of the goods and have agreed to pay the duty on the same, they are estopped from contesting the same, I do not agree with the said reasoning of the adjudicating authority. As explained by the learned advocate, such acceptance for payment of duty on the enhanced value was with a purpose to get the goods cleared and to avoid detention and demurrage charges. The fact that the appellant has challenged such enhancement before the higher appellate forum is itself indicative of the appellants non-acceptance of the enhanced value. Tribunal in the case of Digitech Photocopier has observed that appellants accepted the enhancement of the value because they have already incurred huge detention and demurrage charges and wanted to avoid further burden. Similarly, in the case of Bhawana Spinning Mills, it was observed that payment of duty at the enhanced rate under protest does not amount to acceptance of the enhanced value. Merely because the appellants waived the issuance of show cause notice for quick release of the goods does not meant that they are stopped from challenging the enhanced value by the Revenue.
15. In view of the foregoing discussions, I find no reason to discard the transaction value, in the absence of any evidence to the contrary and in the light of various decisions as discussed above.
14. As regards the violation of EXIM Policy, the learned advocate has drawn our attention to various decisions of the Tribunal, wherein the redemption fine and penalty was reduced to 10% and 5% of the value of the photocopier. I note that in the case of Navpad Enterprises vs. CC, Cochin [2009 (235) ELT 376 (Tri-Bang)], redemption fine and penalty was reduced to 10% and 5% after rejecting the contention of the learned Departmental Representative that the assessee in that case was repeatedly committing violation of the EXIM Policy. The Tribunal observed that inasmuch as in the earlier decisions the view has already been taken to impose fine and penalty at 10% and 5% of value, the Bench cannot deviate from the ratio of its own decision. The said decision of the Tribunal stand confirmed by the Honble Kerala High Court reported as [2012 (278) ELT 172 (Ker)] when the appeals filed by the Revenue was dismissed. Honble Court observed that discretion to fix the redemption fine and penalty is not be exercised in mechanical way but the same is to be exercised in objective manner by quasi judicial authorities and in the absence of any evidence that quantum of fine and penalty fixed by the Tribunal was on the lower side, the Revenues prayer for enhancement of the same cannot be accepted. To the similar effect is decision of the Honble Kerala High Court in the case of CC, Cochin vs. Office Devices [ 2009 (240) ELT 336 (Ker)] and the decision of the Tribunal in the case of CC, Cochin vs. Dilip Ghelani [2009 (248) ELT 888 (Tri-Bang)]. Some further reference can be made to the following decisions, where redemption fine and penalty was reduced to 10% and 5% of value:-
1. L.K. International vs. CC (Prev) Amritsar Final Order No. C/A/205-212/2012 Cus(DB) dated 25.6.12
2. B.E. Office Automation Products P Ltd. vs. CC (Prev)Amritsar Final Order No. C/A/177-188/2012-Cus(DB) dated 25.6.12 Honble Bombay High Court in the case of Tejus Proprietary concern of Tejus Rohitkumar Kapadia [ 2012 (275) ELT 175 (Bom)] has observed that Tribunal is duty bound to follow the binding precedent and further observed that the CESTAT as a judicial body, must realize the importance of doctrine of precedent as in our legal system. Deference to judgments of the Supreme Court is a matter of constitutional principle. Equally unless Coordinate Benches of the Tribunal have due deference and regard for decisions rendered by the Tribunal, the elements of certainty and consistency in the judicial process which lie at the heart of judicial functioning would be seriously disrupted.
In terms of said decision of the Bombay High Court, the precedent decisions of the Coordinate Benches have to be given due respect and are required to be followed unless the same are specifically deviated from by giving suitable reasoning. In those cases also, it is seen that matter needs to be referred to Larger Bench for consideration of the disputed legal issues. Inasmuch as in the present case, all the Coordinate Benches have taken a categorical view of imposition of redemption fine of 10% and penalty of 5% of the value of imported goods, I find no justification to take a different view. It may not be out of place to mention here in some of the cases, the importers were repeatedly violating the EXIM policy provisions. Inspite of that, the Tribunal imposed redemption fine and penalty of 10% and 5% of the value only. Some of the Tribunals decision also stand upheld by the Honble High Court.
15. In view of the above, I set aside the impugned order as regards the enhancement of the value. However the imported goods are confiscated with an option to the appellant to redeem the same on payment of redemption fine of 10% of the value of the goods and penalty of 5% of the value of goods is upheld.
16. The appeal is disposed of in the above terms.
( Archana Wadhwa ) Member(Judicial) Difference of opinion
Whether the appeal has to be rejected by upholding the order of Commissioner (Appeals) vide which he has enhanced the assessable value of the imported goods and has confiscated the goods with redemption fine of Rs. one lakh and has imposed penalty of Rs.2 lakhs, as held by Member (Technical) OR The appeal has to be allowed in respect of assessable value, by accepting the transaction value as correct value of the imported goods and the redemption fine and penalty has to be reduced to 10% and 5% of the declared value, as held by Member (Judicial)?
( Archana Wadhwa) Member(Judicial)
( Manmohan Singh ) Member(Technical)
Ss
Marque Enterprises
DIFFERENCE OF OPINION
17. The appellant imported 980 old and used CRT computer monitors of 17 screen and filed bill of entry No. 121239 dated 25.02.2006 at ICD, Ludhiana for their clearances. The year of manufacturer of the computer monitors was 1999 to 2004 and the monitors were of assorted brands and of mixed origin- Made in Germany, Korea, Japan, Philippines, China, Finland, Canada, Taiwan, and Mexico. The declared FOB value of the goods was US $ 10,676/- FOB, equivalent to Rs. 5,81,005/- CIF. Since, the old and used monitors required an import license and no import license had been produced and there was also no report of the Chartered Engineer about the value of the goods, the department got the goods examined by a Chartered Engineer and on the basis of the report of Chartered Engineer enhanced the value to Rs. 6,91,711/-. However, the report of the Chartered Engineer was not given to the appellant. The Jurisdictional Additional Commissioner of Customs vide Order-in-Original dated 30.03.2008 enhance the assessed value of the goods to Rs. 6,91,711/- and ordered assessment of duty on this value and besides this also ordered confiscation of the goods under section 111(D) of Customs Act, 1962, for import without license but gave an option to the Appellant to redeem the goods on payment of redemption fine of Rs. One Lakh. Beside this penalty of Rs. 2,50,000/- was also imposed on the Appellant under section 112 of customs Act 1962. On appeal being filed to Commissioner (appeals) against this order, the Commissioner (Appeals) vide Order-in-Appeal dated 20.08.2008 dismissed the Appeal. Against this order of the Commissioner (Appeals), this appeal has been filed.
18. The matter was heard by the Division Bench on 07.05.2013, While Member (technical) vide an order dated 19.07.2013 dismissing the appeal, Member (Judicial) by a separate order dated 03.10.2013 set aside the Commissioner (Appeals)s Order upholding the enhancement of the value of the goods to Rs. 6,91,711/- and while upholding the confiscation of the goods under section 111(D) of Customs Act 1962 for import without licence, reduced the redemption fine to 10% of the declared value of the goods and also reduced the penalty to 5% of the declared value of the goods.
19. On account of difference of opinion between Member (Judicial) and Member (Technical), the following point of difference was referred to the undersigned for decision.
Whether the appeal has to be rejected by hpholding the order of Commissioner (Appeals) vide which he has enhanced the assessable value of the imported goods and has confiscated the goods with redemption fine of Rs. One Lakh and hasimposed penalty of Rs. 2 Lakhs, as held by Member (Technical).
OR The appeal has to be allowed in respect of assessable value, by accepting the transaction value as correct value of the imported goods and the redemption fine and penalty has to be reduced to 10% and 5% of the declared value, as held by Member (Judicial).
20. Heard both the sides in respect of the point of difference.
21. Shri Saurav Kapoor, Advocate, the Ld. Counsel for the appellant, pleaded that goods are of assorted brand and assorted country of origin and the year of manufacture is from 1999 to2004, that the goods are old and used and also obsolete, that in view of these circumstances, the declared value of Rs.5,81,005/- CIF is correct, that the declared transaction value cannot be rejected merely on the basis of the Chartered Engineers Report which is based on the enquiry conducted behind the appellants back, that the Chartered Engineers report was not even supplied to the appellant, that merely on the basis of Chartered Engineers report, the declared transaction value of the goods cannot be rejected when the conditions specified in Rule 3(2) of the Customs Valuation Rules, 2007 do not exist, that no enquiry for rejection of the declared transaction value in terms of Rule 12 of the Customs Valuation Rules, 2007 has been conducted and that the Tribunal in the case of Katrina Deals vs Commissioner of Customs, New Delhi vide Final order No. 53777/2014 dated 24.09.2014 in respect of a case of import of old and used/second hand computer monitors has set aside the lower authoritys order, upholding the enhancement of the declared transaction value based on the Chartered Engineers report, that in this order the Tribunal has observed that the assessable value has to be determined on the basis of the provision of Customs Valuation Rule, 2007 which have been the subject matter of various decisions of High Court in which it has been held that the said customs valuation rules have to be complied seriatim wise and the declared transaction value can be rejected only by producing sufficient and tangible evidence, that in this regard, the Tribunal relied upon the Apex Court Judgment in the case of Tolin Rubber Pvt. Ltd. vs CC Cochin reported in 2004 (266) ELT 289 S.C., that this judgement of the Tribunal is squarely applicable to the facts of this case, that the same judgment the Tribunal had reduced the quantum of redemption fine to 10% of the declared CIF value and quantum of penalty to 5% of the declared transaction value relying upon judgement of Honble Punjab & Haryana High Court in the case of B.E. Office Automation products Ltd. Vs. CCE Gurgaon reported in 2014 (300) ELT 486 (P&H), that in this judgement the Honble High Court also held that just because at the time of import, the importer accepts the enhancement of value to avoid further deterioration in the value and quality of the goods and detention/ demolish charges, it cannot take away his right to challenge the confiscation and imposition of redemption fine and penalty, that merely on the basis of Chartered Engineers report which gives a slightly higher value of the goods it cannot be concluded that the declared transaction value of Rs. 5,81,005/- is false, that no evidence has been produced by the department to show, that the appellant had paid any amount over and above the invoice value to the foreign suppliers or that there were contemporaneous imports of identical goods from the same suppliers at much higher prices, that the Tribunal in the case of Sh. Venkatesh Enterprises vs. C.C. Chennai reported in 2005 (192) ELT 818 has held that merely on the basis of the Chartered Engineers report the declared transaction value of the Second hand machinery cannot be rejected and that in view of the above submissions, it is the order recorded by Honble Member (Judicial) which is correct.
22. Shri D.B. Sharma Ld. Departmental representative, defended the impugned order supporting the order recorded by Member (Technical) and pleaded that the appellant at the time of import did not contest the loading of the transaction value, that though the appellant had imported old and used computers monitors, the goods were not accompanied by Chartered Engineers certificate regarding their value, that it is for this reason only that the customs officers had to get the goods examined by a Chartered Engineer, that in these circumstances, that the appellant could not question the value determined by the Chartered Engineer, that even if the report of the Chartered Engineer was not supplied to them they could have ask for the same under Right to Information Act, 2005, that since the imports of second hand computer monitors are very few and as such NIDB data was not available, the value has been correctly determined on the basis of the Chartered Engineers report, that the import of second hand monitor required import licence and admittedly imports have been made without any import licence, the goods have been correctly confiscated under Section 111(D) of the Customs Act 1962, that it is well settled law that when a person imports the good in violation of the Exim policy, the quantum of redemption fine should be sufficiently high to neutralize the entire profit margin, that the profit margin calculations produced by the appellant are showing profit margin of merely 2.5% which is not correct, as no person will invest such a big amount for mere 2.5% margin, that in any case since Ex114, the imports have been made in blatant violation of the exemption policy the quantum of redemption fine and penalty should be determined, and for this reason also there is no justification for reducing the redemption fine to 10% of the value and the penalty to 5% of the declared value and that in view of these submissions, it is the order recorded by the Member (Technical) which is correct.
23. I have considered the submissions from both the sides and perused the records. There is no dispute that the import of the second hand capital goods required an import license and this import is without any import license and, thus, in violation of EXIM policy. The goods, therefore, have been correctly confiscated under section 111(D) of Customs Act, 1962. The dispute is about the quantum of redemption fined and penalty. While the redemption fine ordered by the Commissioner (Appeals) is Rs. One Lakh which amounts to about 20% of the declared CIF value, the penalty imposed is Rs. 2,50,000/- which would be about 45% of the declared transaction value. While this redemption fine and penalty has been upheld by the Commissioner (Appeals), in terms of the order of Member (Technical), this order of the Commissioner (Appeals) has been upheld, Honble Member (Judicial) has reduced the redemption fine to 10% of the value and penalty to 5% of the value. It is seen that the appellant have placed on record A detailed calculation regarding the landed cost of the imported goods, their sale price and margin of profit according to which the margin of profit after taking into account the detention charges would be 2.5% of the value. In these circumstances, I am of the view that the redemption fine of 10% of the value and penalty of 5% of the value as ordered by Honble Member(Judicial) would be correct.
24. As regards the question as to whether declared transaction value of Rs. 5,81,005/- is acceptable or whether the same should be enhances to Rs. 6,91,711/- based on the Chartered Engineers report, I find that the goods imported are of assorted brands and of different country origin and year of manufacture of goods is from 1999-2004. The goods thus are 4 to 8 year old and may be even obsolete models. There is no evidence of contemporaneous import of identical goods imported from the same suppliers at higher price. There is also no evidence placed on record to indicate that the appellant had paid any amount over and above the declared invoice value to the foreign suppliers. It is also not the allegation of the department that any of the conditions mentioned in proviso to Rule 3(2) of the customs valuation rule 2007 are present. In this situation merely on the basis of Chartered Engineers report which is based on the enquiry conducted behind the appellants back and which had not even been supplied to the appellant, the declared transaction value cannot be rejected. Moreover, as per the provisions of section 14 of the Customs Act 1962 which were in force w.e.f 10.10.2007 for the purpose of customs tariff act 1975 or any other law for the time being in force, the value of the imported goods shall be the transaction value of such goods, that is to say the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation where the buyer and seller are not related and the price is the sole consideration for sale, subject to conditions as may be specified in the Rules in this behalf. It is not the allegation of the department that the importer and the foreign supplier are related persons and that relationship has influenced the transaction value. As mentioned above, there is no allegation that the situations in which the transaction value cannot be accepted, as mentioned in proviso to Rule 3(2) of the Customs Valuation Rule, 2007 are present. In my view, therefore, merely on the basis of the value determined by Chartered Engineer, the declared transaction value of the second hand imported goods cannot be rejected when the difference between the declared value and the value as ascertained by Chartered Engineer is marginal as, in this case, the value as ascertained by the Chartered Engineer is only about 16% higher than the declared value. Merely on the basis of this variation, the declared transaction value cannot be rejected, as the importer may have negotiated with the supplier and also the goods being old and used and obsolete, the supplier may be willing to sell the goods at whatever price he could get. In view of this, I agree with the view of Honble Member (Judicial) that there is no justification for enhancement of the transaction value to Rs. 6,91,711/-.
25. In view of the above discussion, I agree with the order recorded by Honble Member (Judicial).
(Rakesh Kumar) Member(Technical) Neha -21- FINAL ORDER No. Per: Archana Wadhwa:
In view of the Majority Order, the appeal is allowed in respect of the assessable value. However, confiscation of the goods and imposition of penalty is upheld with reduction of redemption fine to the extent of 10% of the value of the goods and penalty to the extent of 5% of the declared value.
B.S.V. MURTHY MEMBER TECHNICAL ARCHANA WADHWA MEMBER JUDICIAL 21