Custom, Excise & Service Tax Tribunal
M/S. Jabs International P. Ltd vs Commissioner Of Customs (Import), ... on 12 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. C/933/04-Mum [Arising out of Order-in-Appeal No. 327/04-MCH dated 07/07/2004 passed by the Commissioner of Customs, Mumbai] For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
M/s. Jabs International P. Ltd.
:
Appellant
VS
Commissioner of Customs (Import), Mumbai
:
Respondent
Appearance
Shri Anil Balani, Advocate for the Appellant
Shri M.K. Mall, A.C. (AR) for the Respondent
CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial)
Honble Mr. C.J. Mathew, Member (Technical)
Date of hearing: 12/04/2016
Date of decision: 12/04/2016
ORDER NO.
Per : M.V. Ravindran
This appeal is directed against Order-in-Appeal No. 327/04-MCH dated 07/07/2004.
2. The relevant facts that arise for consideration are that the appellant have imported Star Aniseeds declared a price of US $ 1550 /MT. The said declared value was rejected based upon Spices Market Weekly price and enhanced to US $ 7490 /MT by the adjudicating authority, on an appeal filed before the first appellate authority, after following due process of law, the first appellate authority rejected the appeal based upon the finding that declared value is ridiculously low.
3. Ld. Counsel would submit that the appellant had imported the consignments of Star Aniseed in the month of January 2001 and country of origin was Vietnam and declared the price as per the transaction entered with the supplier. He would submit that the contemporaneous imports price, which is sought to be applied, was incorrect as the imports were in the month of May 2001 and the imports were of subsequent date. He would submit that revenue has not provided any further details like; they were not given the copy of B.O.E. It is also his submission that enhancement of value on the basis of Spices Market Weekly is not correct and permitted. He relied upon the decision of the Supreme Court in the case of Basant Industries 1996 (81) E.L.T. 195 (S.C) for the proposition that comparison of invoices is not conclusive for determination of question of under valuation. It is his submission that the Tribunal in the case of Radhey Shyam Ratanlal 2005 (190) E.L.T. 244 has laid down that declared value has to be accepted, if it is transaction value unless the same is rejected and found incorrect, then only Valuation Rules are applicable and contemporaneous imports of different time quality and quantity cannot be used for enhancement of value. It is the submission that identical view has been taken by the Tribunal in the case of Kanhaiyalal & Co. 2004 (163) E.L.T. 33 (Tri.- Mum.).
4. Ld. departmental representative on the other hand, would draw our attention of the findings recorded by both the lower authorities. He would submit that the prices declared by the appellant as transaction value was ridiculously low as the value of Star Aniseeds in the Spices Market Weekly was shown as US $ 7490 /MT. Since the value was ridiculously low, the same was rejected and contemporary imports value was used for demanding deferential duty. He would submit that the Apex Court in the case of Shibani Engineering Systems 1996 (86) E.L.T. 453 (S.C.) has held that assessing officer can rejected the transaction value of the goods, if it is ridiculously low and totally unrealistic.
5. We have considered the submissions made by both the sides and perused the records.
6. The issue to be decided in this case is regarding whether the appellant has mis-declared the value and the enhancement of the value by the lower authorities is correct or otherwise.
7. We find from the records that the lower authorities have not given the copy of Bill of Entry on which reliance was placed as contemporaneous imports, hence it is not very clear that the consignment of contemporary imports was of the same quality and quantity. Secondly, we find that the reliance placed on contemporaneous import was incorrect as the consignment was entered for clearance in the month of May 2001, whereas the imports made by the appellant was in January 2001. We are of the view that a value declared by an importer who had imported the consignment four months, after the consignment cleared, is not in consonance of the provisions of the Customs Act, as on the day of import there seems to be no contemporaneous imports and the value declared by the appellant was accepted. Again we are not in the position to come to a conclusion whether the imports made in May 2001, were solitary imports or regular imports. At the same time we note that various imports made by the appellant during the same time, the transaction value remained the same. It is also noted that revenue has not brought on records any evidence to indicate that the appellant and the supplier were in collusion to suppress the value nor there is any corroborative evidence of suppression of the value or repartition of any amount over and above the invoiced value. In the absence of any such evidence, rejection of transaction value as declared is incorrect and such order is unsustainable, we note that the ratio of the case as cited by the Ld. Counsel, would directly apply in the case in hand.
8. Accordingly, in the facts and circumstances of this case, we hold that the impugned order is unsustainable and liable to be set aside and we do so. The impugned order is set aside and the appeal is allowed.
(Operative part pronounced in court) C.J. Mathew Member (Technical) M.V. Ravindran Member (Judicial) saifi 5 Appeal No. C/933/04-Mum