Customs, Excise and Gold Tribunal - Bangalore
Asha Amee Enterprises vs Commissioner Of Customs on 22 November, 2004
Equivalent citations: 2005(182)ELT475(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from OIO No. 10/2004, dated 16-3-2004 passed by the Commissioner of Customs, Cochin regarding the assessable value in respect of 2000 pieces of goods declared as GEEPAS Brand VCD Players with Model No. GVCD 2514 imported from China, supplied by M/s. Shenzhen Xin Mei Ge Industry Co. Ltd., China, through their Customs House Agent M/s. Cafco Freight Systems Pvt. Ltd. The declared assessable value of the goods was Rs. 414/- per piece and the Revenue, relying on the E.mail originating from United Arab Emirates (UAE), enhanced the value to US $ 23 per piece which worked out to Rs. 1045/- per piece. The main contention of the assessee is that the transaction value has not been rejected in terms of Section 14 of the Customs Act and the Department cannot enhance the value on the basis of E.mail originating from UAE, which is not contemporaneous evidence. It is neither invoice nor proof of import by another importer in India from the same country, place and time. It was also pointed out that the e.mail showed different models of the product from the one which is declared in the Bill of Entry. It is stated that although the Show Cause Notice furnished 3 Bills of Entries of 9-2-2004, 9-2-2004 and 16-10-2003 in which value is shown as Rs. 820, Rs. 820/- and Rs. 836.28 in respect of different models but the value has been enhanced on the basis of these Bills of Entries, which is referred in the Show Cause Notice. But the Revenue has proceeded to enhance it on the basis of the E.mail, which showed the price as Rs. 1045/-. The learned Counsel relied on a large number of judgments and pointed out that the enhancement of value is against law and in terms of the following judgments.
1. Sounds-N-Images v. CCE - 2000 (117) E.L.T. 538 (S.C.)
2. Eicher Tractors Ltd. v. CC, Mumbai - 2000 (122) E.L.T. 321 (S.C.)
3. Laxmi Colour Lab v. CC - 1992 (62) E.L.T. 613 (Tribunal) which is confirmed by the Apex Court.
4. Sai Impex v. CC - 1992 (62) E.L.T. 616 (Tribunal) which is also confirmed by the Apex Court.
5. Venus Insulation Products Manufacturing Co. v. CC, Goa - 2001 (138) E.L.T. 577 (Tri.-Del.).
6. Plethico Pharmaceutical v. CCE, Indore - 2003 (155) E.L.T. 355 (Tri.-Del.)
2. The learned Counsel submitted that the Tribunal, in the case of Munna Gift Centre v. CC, Chennai, by Final Order Nos. 827 & 828/2004, dated 27-4-2004, [2004 (178) E.L.T. 310 (T)] has relied on a large number of Apex Court and High Court rulings and has set aside the enhancement of valuation on the ground that the value cannot be enhanced based on unrealistic terms without relying on contemporaneous import.
3. The learned SDR defended the Order and submitted that the E.mail was emanating from a dealer of the same goods dealing in UAE and it can be accepted as contemporaneous in nature.
4. On our careful consideration, we find that the Department has not relied on the valuation in terms of the Bill of Entries noted in the Show Cause Notice which was at the rate of Rs. 820/-, Rs. 820/- and Rs. 836.28 in respect of different models of GEEPAS VCD viz. model GVCD 2518, model GVCD 2519 and model GVCD 512, while in the present case, the GVCD model is 2514. The department has given up the comparable prices as shown in the Bill of Entry cited in the Show Cause Notice but has proceeded to rely on the e-mail which has originated from UAE. The e-mail cannot be considered as a contemporaneous evidence which is a mere offer put on the e-mail and not a negotiated price emanating from the same country - China, in respect of same models for the same period of time. Therefore, in terms of the judgment cited by the learned Counsel, the enhancement of valuation is not as per law and requires to be set aside. The Supreme Court judgment and the High Court rulings have all been considered in a similar issue in the case of M/s. Munna Gift Centre v. CC, Chennai in Final Order Nos. 827 and 828, dated 27-4-04. The findings recorded in para 4 is extracted herein below:
"4. On a careful consideration of the submissions made, we notice that the judgments relied by Ld. JCDR are not on the same issue and facts and different than the one relied by the Counsel in the present case. As noted in the case of CCE v. Shibani Engg. Systems, the Revenue had relied on contemporaneous evidence and the transaction value was rightly rejected by Collector on the ground that the declared value was totally unrealistic value. Likewise in the case of Pan Asia Enterprises, the value declared was not accepted as value of identical goods was available from the same supplier and in view of the evidence available, the transaction value was rejected. So also in the case of P.K. Himatsingka & Co. wherein also the Department was able to produce price of identical goods supplied to another firm, which was comparable in nature. In the present case, the only ground taken by the Revenue is the admission made by the appellant at the time of investigation by DRI agreeing for enhancement of value to US$ 325. However, in the reply to the show cause notice, he has retracted his admission and stated that the valuation adopted by the Revenue is not comparable with the goods imported from Dubai of Thailand origin. The department is attempting to compare goods with goods of Japanese origin. In terms of Section 14, the goods are required to be identical, imported at the same time and from same place. The evidence recorded by the Revenue is totally not of the same scope/brand, quantity, country of origin, place of import and the commercial level of transaction is totally different The appellant has rightly relied on large number of judgments which is noted supra wherein it has been well laid down that transaction value cannot be rejected without clear evidence produced by the Revenue with regard to same goods, same quantity, quality and country of origin and place and time of import. It was for the Revenue to have produced evidence to show that the transaction value was not acceptable in view of the comparable price. The Department is comparing with the goods of Japanese origin, it cannot be said to be of the same quantity and quality of the goods originating from Thailand. Furthermore, the present goods imported by the appellant vide their Bill of Entry dated 21-6-2000 while the Department is comparing with the goods of Japanese origin and prices effective from 4-6-2000. As the goods compared are of a different country on a different model with quality and quantity being different, therefore, the revision of prices by the Department and rejection of transaction value under Section 14 is not justified. It is furthermore seen that department has not alleged about any extra consideration having passed on to the supplier of the goods at Dubai. There is no admission made by the appellant that such extra consideration has been passed on while admitting for enhancement of the value for the purpose of clearance. In the absence of any such evidence, it cannot be alleged that the transaction value is not at the arms length and the same being not acceptable. The impugned Order is not legal and proper in the light of the citations and reasonings given by us. The same is set aside by allowing the appeal with consequential relief, if any."
The learned Counsel also relied on the judgment rendered in the case of Plethico Pharmaceutical v. CCE, Indore - 2003 (155) E.L.T. 355 (Tri.-Del.) wherein it has been held that the internet offer prices is also not reflective of actually transacted prices, as the facts indicated that it has remained unchanged till the time of Show Cause Notice in the present case.
5. Respectfully following the ratio of the judgment cited by the learned Counsel and that of Plethico Pharmaceuticals, the impugned Order is set aside and the appeal is allowed with consequential relief.