Custom, Excise & Service Tax Tribunal
Artex Textile Pvt. Ltd vs Cce, Delhi-Iv on 19 June, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017
COURT NO. I
Appeal Nos. C/3167-3176, 4179-4182/2012
(Arising out of OIA Nos. 77-86/CUS/Appl/DLH-IV/2012 dt. 02.08.2012, OIA No. 179/CUS/Appl/DLH-IV/2012 dt. 04.10.2012 and OIA No. 132-134/CUS/Appl/DLH-IV/2012 dt. 01.10.2012 passed by the Commissioner of Central Excise (Appeals), Delhi-IV, Faridabad.)
Date of hearing/decision: 19.06.2017
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
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1. Artex Textile Pvt. Ltd.
2. Aggarwal Overseas.
Appellant(s) VS CCE, Delhi-IV.
:
Respondent(s) ======================================== Appearance:
Sh. Prem Ranjan, Advocate for the Appellant(s) Sh. Tarun Kumar, AR for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
FINAL ORDER NO. 61168-61181/2017
Per : Ashok Jindal
The appellants are in appeal against the impugned orders wherein the transaction value was rejected. As there is a common issue, therefore, all the appeals are disposed off by the common order.
2. The facts of the case are that the appellants are importer of polyester PVC coated fabrics for which they filed the above referred bills of entry declaring thereunder the transaction value. On examination, the goods were found to be as per declaration. But the adjudicating authority loaded the declared assessable value. The appellants after paying duty on the loaded value cleared the goods. Thereafter, the appellants filed the appeals before the Ld. Commissioner (A) on the ground that the assessment at the loaded value is contrary to the provisions of Section 14 of the Customs Act, 1962 read with Rule 3 of the Customs Valuation (Determination of price of imported goods) Rules, 2007. Therefore, the transaction value cannot be rejected. But the ld. Commissioner (A) confirmed the orders to adjudication. Aggrieved from the said orders, the appellant is before us.
3. The Ld. Counsel for the appellants submits that it was found that description of quantity of the goods have been declared properly and there is no reasons to reject the transaction value. The reason for the enhancement of the assessable value is only that there were contemporaneous assessed and cleared bills of entry on higher value and there was circular/alert of the Commissioner of Customs JNCH Nehva Sheva. He submits that the value cannot be enhanced on the basis of such alerts. He further submits that the value cannot be enhanced on the basis of such alerts/circular wherein the declared value is more than the transaction value has shown by the appellants, therefore, the value relied by the Ld. Commissioner (A) in the bills of entry which has been assessed and declared is not reliable. To support his contention he relied on the decision of this Tribunal in the case of M/s Sedna Impex India P. Ltd. vide Final order No. A/61032-61049/2016 dated 03.08.2016. He also submits that no speaking order under section 17(5) of the Customs Act, 1962 has been passed.
4. The Ld. Counsel for the appellants further submits that a similar issue has been decided by this Tribunal in the case of Soir International Vs. CC, Delhi-IV vide Order No. A/60170-60178/2017-CU[DB] dt. 11.01.2017 wherein it has been held that on the basis of DRI alert/circular issued by Commissioner of Custom, JNCH Nava Shiva, Mumbai and contemporaneous price has taken from the bills of entries assessed and cleared the value cannot be enhanced.
5. Heard the parties and considering the submissions.
6. We find that a similar issue came up before this Tribunal in the case of Soir International Vs. CC, Delhi (supra) wherein this Tribunal observed as under:-
7. The ld. AR relied on the decision of M/s Techno Marketing (Supra) to say that declared price can be enhanced on the basis of alert/circular. We have gone through the case of M/s Techno Marketing (Supra) in the said case the main importer was asked to produce the supplier invoices but the imported failed to do so. In that circumstances, relying on the letter of Commissioner of Customs, the price was enhanced. These facts are not applicable to the case in law. The decision in the case of M/s Single Bearing Co. (Supra) has been passed relying on the decision of M/s Techno Marketing (Supra), therefore, the said case is not applicable to the facts of this case. Moreover, as per Section 14 of the Customs Act, 1962 without rejecting the transaction value, the declared value cannot be enhanced. Admittedly, in this case in hand the transaction value has not been rejected and it has been found that declared quantity and description of the goods have been declared by the appellant properly. In that circumstances, without rejecting the transaction value under Section 14 of the Customs Act, 1962, the value cannot be enhanced. Further, we find that the similar issue came up before this Tribunal in the case of Sedna Impex India Pvt. Ltd. (Supra) wherein it is a case of import of polyester knitted fabrics and there also on the basis of DRI alert, the value of goods were sought to be enhanced. In that case this Tribunal has examined the issue and observed as under:
7. On hearing the parties, we find that the value of the imported goods has been enhanced on the grounds:
(a) On the basis of DRI alert and
(b) On the basis of assessed bill of entry of similar goods.
8. We find that the initially there was DRI alert that the overseas suppliers are undervaluing the value of the goods in question, the same cannot be the reason for enhancement of the value without rejecting the transaction value. The Customs Valuation Rules deals with situation how to enhance the value of the imported goods. DRI have not concerned with the said valuation Rules, therefore, the declared value cannot be enhanced on the basis of DRI alert.
9. In the impugned order, we find that the Commissioner (Appeals) has relied on the assessed value and not the value declared. Rule 5 of the Valuation Rules provide for enhancement of the value is to be done as per said rule. Moreover, the declared value is found less than the assessed value which cannot be the basis of enhance the value. In this case, the department has assessee identical goods at the rate of 2.85 US$ per kg whereas the value declared by the appellant ranges between 2.00 US$ to 2.63 US$ per kg. The price which has been adopted to be assessed is not the declared value. In fact, the same is the assessed value. Therefore, the said value cannot be said as the value contemporaneous import. Similar issue came up before this Tribunal in the case of Ravi Dyeware Co. Ltd. (Supra) wherein this Tribunal has observed as under:
5.1 The enhancement of the value has been done under Rule 5 of the Customs Valuation Rules, 1988. As per the said Rule, if more than one value is found, then the lowest of the such value shall be used to determine the value of the imported goods. In the present case as pointed out by the Ld. Counsel; the department has assessed identical goods at lower values ranging from US $ 1070 to US $ 1090 PMT, whereas the value declared by the appellant is higher at US $ 1100 PMT. Further, the price adopted for comparison is not a declared value but an enhanced value by the Customs. The values declared in those transactions ranged from US $ 1050 to US $ 1090 PMT. In the case laws cited by the appellant, this Tribunal has already held that for the purpose of comparison to contemporaneous imports, the value to be adopted is not the value arrived at after loading by the department but the value that has been declared and accepted without any enhancement. Besides, we notice that no evidence has been led by the Revenue in the instant case to counter the appellants contention that the transaction value declared by them, as evident from the documents is not the real transaction value.
6. In view of the above, we are of the considered view that the value of US $ 1100 PMT declared by the appellant has to be accepted as the transaction value. Consequently, the enhancement of the value made by the lower authorities are not sustainable in law. Hence, the appeal is allowed with consequential relief, if any.
10. Further, in the case of Samar Polytex Ltd. (Supra) again this Tribunal has observed as under:
6. We have carefully considered the submissions. The principles based on which the declared transaction value can be rejected and value of contemporaneous can be adopted are well settled. A comparison of prices of goods of two distinct varieties, (i.e. nylon with polyester- nylon mix) and that too from two different countries is not permissible. Further, the price adopted was not the actual import price but the price enhanced by the Department which has been reportedly accepted. Such an enhanced price can not be treated as transaction value of similar goods sought to be compared. We have not been shown any evidence of actual higher import price of similar goods which can be adopted for the present import. In view of the above, the orders of the Commissioner enhancing the assessable value cannot be sustained.
11. In view of the above discussion, we hold that the value of the imported goods cannot be enhanced on the basis of value of assessed value of bill of entry.
12. Further, we take note of the fact that similar goods have been imported by the other importers. In whose case the value was enhanced by adopting the contemporaneous import of assessed bill of entry and the enhancement of value was set aside by this Tribunal in the case of Maruti Fabrics Impex vide Order No. 51690-51694/2016 dated 27.04.2016 is not justified without rejecting the transaction value of the same and observed as under:
6. As regard the second issue, we find that Commissioner (Appeals) has gone into detailed examination of the provisions of Section 14 as also the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. As rightly observed by him, for adopting the provision of Customs Valuation Rules, the transaction value is required to be rejected as incorrect value. There being no evidence to show that the importer has paid over and above than the transaction value, to the seller of the goods, there is virtually no reasons to reject the transaction value. It is also a settled law that DRI alerts cannot be adopted as a reason for enhancing the value. As such, we find no infirmity in the views adopted by the Commissioner (A) so as to interfere in the impugned order. Accordingly, the appeals filed by Revenue are rejected.
13. In view of the above discussion, we hold that the value of imported goods in question cannot be enhanced on the basis of DRI alert and the basis of assessed bill of entry in question, therefore, the impugned orders are set aside. In view of the above analysis, we hold that without rejecting the value of imported goods under Section 14 of the Custom Act, 1962, the value cannot be enhanced on the basis of DRI alert/circular issued by the Commissioner of Custom and contemporaneous value of the similar goods assessed/cleared, therefore, the impugned orders deserves no merits, hence are set aside. Accordingly, the declared value of the impugned goods by the appellants are accepted and consequently, the appeals are allowed with consequential relief.
(Dictated and pronounced in the open court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) NS 7 Appeal Nos. C/3167-3176, 4179-4182/2012-CHD