Custom, Excise & Service Tax Tribunal
M/S Venture Impex Pvt. Ltd vs Cc (Import & General), New Delhi on 16 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV DATE OF HEARING : 16/03/2016. DATE OF DECISION : 16/03/2016. Customs Appeal No. 588 of 2010 [Arising out of the Order-in-Appeal No. CCA/ICD/66/2010 dated 20/07/2010 passed by The Commissioner of Customs (Appeals), New Custom House, New Delhi.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, 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 would 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 : Department Authorities? M/s Venture Impex Pvt. Ltd. Appellant Versus CC (Import & General), New Delhi Respondent
Appearance S/Shri R. Santhanam and Bharat Agarwal, Advocates for the appellant.
Shri K. Poddar, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51038/2016 Dated : 16/03/2016 Per. Archana Wadhwa :-
After hearing both the sides, we find that the appellants, who is an importer filed two bills of entries dated 2nd May, 2008, one for clearance of goods describing the goods as Stainless Steel Coils Grade 201 Ex Stock imported from China. Alongwith the said bills of entries, the appellants filed all the requisite documents in the shape of Exporter Invoice, Packing List, and Country of Origin Certificate as also Bill of Lading etc. The said goods were examined, at the time of clearance and the appraisal entertained a view that the goods were of prime quality and not of 201 Ex Stock. It was also noticed that in respect of one of bills of entries, the weight was in excess to the tune of 779 kgs. over the declared weight.
2. On the above basis, proceedings were initiated against the appellant by the way of issue of show cause notice for enhancement of the value of the imported goods, on the basis of the NIDB Data as also on the basis of the invoices, observed to be contemporaneous invoices, indicating the import of prime quality Stainless Coil in the month of March 2008. However, the Adjudicating Authority in his impugned order, by relying upon the NIDB Data, enhanced the value from declared value of U.S. $ 1877 per M.T. and 1497 U.S. $ per M.T. to U.S. $ 2012.39 per M.T. He also confiscated the goods with an option to the appellant to redeem the same on redemption fine of Rs. 1,00,000/- and imposed penalty of Rs. 2,00,000/- each on the importing firm as also on Director of the importing firm.
3. On appeal against the above order, the Commissioner (Appeals) made two observations : as regards the quality of the goods, he observed that Adjudicating Authority has not brought out any evidence on record that the goods imported by the appellant were of prime quality and not of Grade 201 Ex Stock. He also observed that there is nothing on record to show that the difference of 779 kgs. found in one of the consignments covered by the bills of entries, there was any role either on the part of the importing firm or the Director. He also observed that as the rate of duty in respect of the classification declared by the appellant and the classification adopted by the Revenue is the same there may not be any effect on the quantum of duty. As such, by holding that since the appellant was not aware of the difference in the weight of the goods and the same was not done at his instance/direction and also the difference in weight is small as compared to the total weight of the impugned goods, the gravity of main allegation of mis-declaration is much less. Further more, the involvement of the Director has not been brought out and his involvement is being presumed. By observing so, he reduced the penalty to Rs. 25,000/- on the firm and Rs. 5,000/- on the Director.
4. As regards valuation, he observed as under :-
13. The appellant has contested the enhancement of value on the basis of NIDB data on the ground that there is no comparison of quantum of import, quality of goods, relation between the buyer and the seller etc. But the appellant ha snot brought out any evidence to show that there was any other date of import of similar goods at the same or lower value whereas the Adjudicating Authority has relied on the data of contemporary imports of the similar goods retrieved from NIDB @ USD 2012.39 PMT. Therefore, the contention of the appellant is not correct and the enhancement of value has correctly been done on the basis of NIDB data as per law and as per the rationale in the subject Order-in-Original.
Hence, the present appeal.
5. The appellants grievance is that the value has been enhanced only on the basis of NIDB data without rejecting the transaction value. There is neither any allegation nor any evidence on record to show that the value agreed upon between the importer and the exporter does not reflect the correct position. Tribunal has considered similar issues in number of earlier decisions and has held that adoption of NIDB Data, without any other evidence on record to establish the transaction value as incorrect, is not proper and justified. For the above propositions, learned Advocate has drawn our attention to various decisions of the Tribunal.
It is also contention of the learned Advocate that the imposition of penalty of Rs. 25,000/- on the importing firm is not justified in as much as the Appellate Authority has himself arrived at a finding in favour of the assessee. Having held that there was no malafide on the part of the importer, it was not proper for the Appellate Authority to impose penalty on the firm. However, learned Advocate fairly agrees that the Director of the firm has not filed a separate appeal.
6. Countering the above arguments, learned DR appearing for the Revenue submits that the goods were found to be of prime quality by the examiner, at the time of examination of the goods and said fact, by itself, is indicative that the value of the imported goods should have been on the higher side. In these circumstances the adoption of NIDB data, which is nothing but compilation of the correct value of identical goods is appropriate. As such, he prays for upholding the impugned orders.
7. Having appreciated the submissions made by both the sides and having gone through the impugned order, we find that the findings of the lower Authorities that the goods were of prime quality instead of the same being Grade 201 Ex Stock are depending upon the visual examination of the goods by the Appraiser at the time of clearance of the goods. As rightly observed by Commissioner (Appeals), there is factually no evidence on record to reflect upon the said fact. Admittedly Appraisers cannot be held to be an expert in the field and his opinion, based upon the visual examination, cannot be equated with an experts opinion on the subject. No tests have been carried out, no experts opinion obtained and as such it is difficult to accept the Revenues proposal that the goods were not of the Grade declared by the assessee and were of higher Grade. However, we find that apart from observing that there was no willful mis-declaration by the importer so as to avoid incidence of a higher duty, he has also observed that even a small percentage of the excess goods covered by one of bills of entries was also not at the instance of the importer. However, in spite of that he has imposed penalty on the importer. We are of the view that the said part of the impugned order of Commissioner (Appeals) is self-contradictory, thus not calling for imposition of any penalty on the importer.
8. As regards valuation, we find from the above reproduced para from the Commissioner (Appeals) order that the Revenue has solely relied upon the NIDB data for the purpose of enhancement of value of the imported goods. Tribunal in the case of CC, New Delhi vs. Virasat Electronics reported in 2015 (317) E.L.T. 295 (Tri. Del.) as also in the case of CC, New Delhi vs. Marble Art reported in 2013 (289) E.L.T. 346 (Tri. Del.) has held that for adopting any other method for enhancement of the value of the imported goods, first of all transaction value is required to be rejected as incorrect/false on the basis of some evidences. It is only thereafter that the other method of deciding value has to be adopted. In any case, the Tribunal has observed that NIDB data cannot be held to be the proper basis for enhancement of the value.
When we apply the ratio of the above decisions to the facts of the present case, we find that Revenue has not made any efforts to reject the transaction value. There is virtually no evidence on record to indicate that the value agreed upon between the importer and the exporter is not correct or any consideration of the goods has flown back to the exporter from the appellant. If that be so, we agree with the learned Advocate that the transaction value would reflect the correct assessable value of the imported items. Otherwise also, we find that the reliance by the lower Authorities on the NIDB data is not correct. Apart from above two referred decisions, there is catena of decisions holding so. As such, we are of the view that the impugned orders are not proper and justified. The same are accordingly set aside and appeal is allowed with the consequential relief to the appellant.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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