Custom, Excise & Service Tax Tribunal
M/S. Topsia Estates Pvt. Ltd vs Commissioner Of Customs, Chennai on 29 October, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/41550/2014
(Arising out of Order-in-Appeal C. Cus. No. 543/2014 dated 1.4.2014 passed by the Commissioner of Customs (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
Honble Shri R. Periasami, Technical Member
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 the Members wish to see the fair copy of the Order?
4. Whether order is to be circulated to the Departmental authorities?
M/s. Topsia Estates Pvt. Ltd. Appellant
Vs.
Commissioner of Customs, Chennai Respondent
(Import Seaport) Appearance Shri Sudhir Kumar Mehta, Advocate, for the Appellant Shri M. Rammohan Rao, DC (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Honble Shri R. Periasami, Technical Member Date of Hearing: 29.10.2014 Date of Decision: 29.10.2014 Final Order No.40850/2014 Per R. Periasami The relevant facts of the case, in brief, are that the appellants imported PU Coated Fabrics of various thicknesses from China and filed 24 Bills of Entry during the period from November 2012 to July 2013. The assessing officer enhanced the declared value and the appellant paid duty under-protest. The appellant filed appeals before the Commissioner (Appeals) against the assessment orders. Commissioner (Appeals) remanded the matter to the adjudicating authority for issuing a speaking order after complying the principles of natural justice.
2. In denovo proceedings, the adjudicating authority rejected the declared value of the goods in question under cover of 24 Bills of Entry and enhanced the value. The appellant filed appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) rejected the appeal filed by the appellant.
3. The learned counsel on behalf of the appellant submits that they have been importing the said goods in different times through various ports such as Chennai, Kolkata etc. It is submitted that the value of PU Coated Fabrics varies depending upon the country of origin, quality, size, quantity etc. In the present case, the adjudicating authority enhanced the value on the basis of NIDB data. It is well settled by the Honble Supreme Court and Tribunal that the transaction value cannot be rejected merely on the basis of NIDB data as under:-
(a) Eicher Tractors Ltd. Vs. Commissioner of Customs, Mumbai 2000 (122) ELT 321 (SC)
(b) Rabindra Chandra Paul Vs. Commissioner of Customs, Shillong 2007 (209) ELT 326 (SC)
(c) Commissioner of Customs, New Delhi Vs. DM International 2013 (289) ELT 169 (Tri. Del.)
(d) Commissioner of Central Excise, Delhi III Vs. Om Sairam Trading Co. 2009 (241) ELT 536 (Tri. Del.)
4. He further submits that the adjudicating authority observed that as it is a live Bill of Entry, paucity of time rules out application Rules 4 & 5 of Valuation Rules, 2007 with regard to exact comparing data of identical/similar goods. It is also observed that deductive and computed method under Rules 7 & 8 of the Customs Valuation Rules cannot be applied in the absence of quantifiable data. The learned Advocate submits that in this situation Rule 9 of the Customs Valuation Rules cannot be invoked.
5. He further submits that the appellant imported the same goods from Kolkata Port and the adjudicating authority enhanced the value. The Commissioner (Appeals) set aside the adjudication order and no appeal was filed by the Department. They have also got the refund. In this context, the learned counsel drew the attention of the Bench the relevant portion of the written submission filed before the lower authorities.
6. The learned AR for Revenue submitted a written submission. He submits that the value of PU Coated Fabrics is a contentious issue for a long time. The Department was of the view that the value declared by the appellant is on the lower side in comparison to NIDB data. The adjudicating authority had given a detail finding for invoking Rule 9 of the Valuation Rules. The case laws relied upon by the learned counsel is not applicable to the present case. He submits that in this case the Department produced the evidence in terms of NIDB data relating to the goods of same description, same country of origin and similar quality. He relied upon the decision of the Tribunal in the case of Auto Stores Vs. Commissioner 2013 (298) ELT 290 (Tri. Mumbai).
7. After hearing both sides and on perusal of the records, we find from the adjudication order that the adjudicating authority observed that the unit price declared appears to be very low compared to the contemporaneous import value available in NIDB data. The appellant imported PU Coated Fabrics of various thickness and different qualities from China. It is seen from the Table as reproduced in the adjudication order that the declared unit price varies from 0.90 MT to 1.60 MT and the value was enhanced from1.24 per MT to 2.04 per MT. We have also noticed that the appellant imported the same goods from Kolkata Port also. The appellant in the written submission before the Commissioner (Appeals) submitted copies of the various orders passed by the Commissioner (Appeals) under which it was accepted. There is no evidence of higher value of contemporaneous import from same sources. There is no allegation of mis-declaration of the goods.
8. The Honble Supreme Court in the case of Eicher Tractors Ltd. (supra) held that the value, according to Section 14(1) of the Customs Act, 1962, shall be taken to be the price at which such or like goods are originally sold, or offered for sale, for delivery at the time and place of importation in the course of international trade. The special circumstances have been statutorily particularized in the Customs Valuation Rules and in the absence of these exceptions, it is mandatory for customs to accept the price actually paid or payable for the goods in the particular transaction.
9. The Tribunal in the case of DM International (supra), respectfully following the decision of the Honble Supreme Court in the case of Eicher Tractors Ltd. (supra), held as under:-
5. We find that? there is no dispute that the customs has power to reject the transaction value and enhance the assessable value in terms of Customs Valuation Rules. However, such rejection of transaction value and enhancement of assessable value has to be on the basis of some evidences on record. Contemporaneous imports have to be considered with reference to quality, quantity and country of origin with the imports under consideration. It has been held in a number of decisions that NIDB data cannot be made the basis for enhancement of value. Commissioner (Appeals) has relied upon various decisions of the Tribunal for holding that any enhancement in assessment value, the transaction value has to be first rejected based on legal permissible ground as indicated in the Valuation Rules. He has also referred to Honble Supreme Court decision in the case of Eicher Tractors Ltd. v. CC - 2000 (122) E.L.T. 321 (S.C.) in support of his finding that transaction value cannot be rejected without clear and cogent evidence produced by the department with regard to quality, import of origin and place and time of import.
10. In the case of Om Sairam Trading (supra), held as under:-
5. After hearing both sides and on perusal of the record, we find that the respondents paid duty under protest as evident from the TR-6 challan produced by the respondents. This fact was also recorded in the impugned order. Commissioner (Appeals) passed the order following the decision of the Honble Supreme Court in the case of Eicher Tractors Ltd. v. Commissioner of Customs - 2000 (122) E.L.T. 321 (S.C.), wherein it is held that transaction value cannot be rejected without clear and cogent evidence produced by the department in respect of import of identical or similar goods with regard to quantity, quality, country of origin and place and time of import. The learned DR relied upon letter dated 30-9-2005 of Assistant Commissioner (SIIB), ICD, TKD, addressed to Assistant Commissioner (Import Processing), ICD, Tughlakabad whereby it is stated that benchmark price for knitted polyester fabrics is arrived at US $ 2.50 per kg. We find that the price cannot be enhanced merely on the basis of benchmark price without stating any reason for rejecting transaction value. It appears that NIDB data placed by the learned DR has followed the benchmark price. Accordingly, we do not find any reason to interfere with the order of the Commissioner (Appeals). The appeal filed by Revenue is rejected.
11. We find that in the present case, the adjudicating authority enhanced the value as the declared value appears to be very low compared to value available in NIDB data, otherwise, there is no material available. The Tribunal consistently observed that the declared value cannot be enhanced merely on the basis of NIDB data. It is noticed that the value of impugned goods varies widely on the basis of quality, size, quantity etc. and it is contended by the appellant before the lower appellate authority that the declared value of the same goods were accepted by the Department at Kolkata Port. We also find force in the submission of the learned Advocate that in this particular situation, Rule 9 of the Valuation Rules would not be invoked.
12. In view of the discussions above and respectfully following the decision of the Honble Supreme Court which was followed by the Tribunal in various decisions, we hold that in the present case, the enhancement of value on the basis of NIDB data cannot be accepted. Accordingly, the impugned orders are set aside and the appeal is allowed with consequential relief, if any.
(Operative portion of the order was
pronounced in open court)
(R. PERIASAMI) (P.K. DAS)
Technical Member Judicial Member
Rex
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