Custom, Excise & Service Tax Tribunal
Pune vs Shri Hari Corporation on 30 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/6/2004
[Arising out of Order-in-Appeal No: Pune-Cus/BKS/37/2003 dated 29/08/2003 passed by the Commissioner of Customs & Central Excise (Appeals), Goa.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Commissioner of Customs
Pune
Appellant
Vs
Shri Hari Corporation
Respondent
Appearance:
Shri M.S. Reddy, Dy. Commissioner (AR) for the appellant None for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 30/01/2014 Date of decision: 30/01/2014 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The appeal is directed against Order-in-Appeal No: Pune-Cus/BKS/37/2003 dated 29/08/2003 passed by the Commissioner of Customs & Central Excise (Appeals), Goa.
2. Vide the impugned order the lower appellate authority has set aside the enhancement of value of the glassware imported by M/s. Shri Hari Corporation based on manufacturers price-lists for the same by the assessing officer and confirmation of duty demand of ` 2,45,992/- consequent upon enhancement of the value. Aggrieved of the same the Revenue is before us.
3. In the appeal memorandum it has been urged that the rejection of transaction value under Rule 10A of the CVR 1988 based on the price-list of the manufacturer is correct in law and the reliance placed by the learned lower appellate authority on the apex Court decision in Eicher Tractors case [2000 (122) ELT 321 (SC)] is incorrect and the said judgment was prior to introduction of Rule 10A. Rule 10A provided an additional method for rejection of transaction value when the officer has a reasonable doubt about the truth or accuracy of the declared value. Reliance is placed on the decision of the honble apex Court in the case of Sharp Business Machines Pvt. Ltd. vs. Commissioner of Customs 1990 (49) ELT 640 and the decision of this Tribunal in Vimal Enterprises Pvt. Ltd. vs. Commissioner of Customs 2001 (129) ELT 123 for rejection of the transaction value and enhancement of value in accordance with the manufacturers price-lists.
3.1. The learned Dy. Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum. He also furnished a copy of the price-list issued by the manufacturer of the goods, namely, Bormioli Rocco, on the basis of which the enhancement has been done. He further submits that a copy of this price-list was also given to the respondent at the relevant time but the respondent could not rebut the price-list nor could lead any evidence by producing either quotations of manufacturers or value of contemporaneous imports. In these circumstances, the decisions in the case of Sharp Business Machines Pvt. Ltd. and Vimal Enterprises Pvt. Ltd. (supra) would become applicable and accordingly the Revenue was justified in enhancing the value.
3.2. Accordingly, he pleads for setting aside the impugned order.
4. None represented the respondent despite notice. The case was listed for hearing on five occasions earlier, namely, 16/05/2013, 06/08/2013, 08/10/2013, 08/11/2013 and 19/12/2013 and on all the five occasions, the respondent was not present and it is the sixth time the case is coming up for hearing. Today also, none represented the respondent despite notice. In these circumstances, we take up the appeal for consideration.
5. In the present case, the respondent imported glassware from M/s. Ratans Enterprises LLC, Dubai, UAE. On examination, the goods were found to be manufactured by M/s. Bormioli Rocco and the country of origin was found to be Italy. The department obtained a copy of the price-list of the manufacturer and compared the prices declared by the importer and the prices declared for identical items in the price-list of the manufacturer. It was found that there was a huge variation and the prices declared by the respondent-importer were much lower. Accordingly, the transaction value declared by the respondent-importer was rejected and the prices were loaded on the basis of the price-list of the manufacturer and a differential duty of ` 2,45,992/- was confirmed by the assessing officer. In appeal, the lower appellate authority set aside the order on the ground that the enhancement of value based on the manufacturers price-list is not sustainable in law in view of the apex Courts decision in Eicher Tractors case (supra).
5.1. We notice that when the apex Court considered the case, Rule 10A was not introduced and the same was introduced subsequently w.e.f. 19/12/1998. As per the said Rule:
10A. Rejection of declared value:-
(1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the value of such imported goods cannot be determined under the provisions of sub- rule (1) Rule 4.
(2) At the request of an importer, the proper officer, shall intimate the importer in writing, the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). 5.2. In the present case, the condition stipulated in Rule 10A stands satisfied. As can be seen from the order of the assessing officer, the importer was asked to produce a copy of the manufacturers price-list. However, the respondent-importer failed to produce any such document. It was merely stated that the goods were shipped on the basis of a sight draft and not against LC. There is also no written contract in existence and that the supplier has not favoured the importer with the manufacturers invoice. A copy of the manufacturers invoice was procured by the Customs authorities and shown to the importer and he was asked to comment on the same. In spite of giving such opportunities, the respondent-importer was not able to lead any evidence as to how they could obtain the impugned goods, namely, glassware, at lower price when compared to the manufacturers own price-list. In these circumstances, it has to be held that the Customs authorities have made out a case for under valuation and, therefore, the onus of proving that there was no undervaluation shifts to the respondent-importer and this onus has not been discharged by the respondent-importer. Therefore, the department was justified in enhancing the value on the basis of the manufacturers price-list. The ratio of the apex Courts decision in the case of Sharp Business Machines Pvt. Ltd. (supra) and of this Tribunal in the case of Vimal Enterprises Pvt. Ltd. (supra) support such enhancement of value on the basis of manufacturers price-list.
6. Therefore, we find merit in the appeal filed by the Revenue and accordingly allow the same by setting aside the impugned order of the lower appellate authority and restore the order dated 14/12/2001 of the adjudicating authority, namely, Dy. Commissioner, CFS, Pimpri, Pune.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 2