Customs, Excise and Gold Tribunal - Tamil Nadu
Esjaypee Impex Pvt. Ltd. vs Commr. Of Customs on 12 December, 2002
Equivalent citations: 2003(159)ELT573(TRI-CHENNAI)
ORDER Jeet Ram Kait, Member (T)
1. This appeal is directed against the Order-in-Appeal No. C. Cus. 157/2002, dated 24-4-2002 passed by the Commissioner of Customs (Appeals) by which the Commissioner (Appeals) has rejected the appeal of the appellants by confirming the order passed by the lower authority whereby the lower adjudicating authority had enhanced the declared value of the goods viz. Synthetic camphor from USD 1315 per MT to 1850 per MT.
2. Shri S. Murugappan, learned Counsel along with Ms. Prameela Vishwanath, Advocate for the appellants submitted that the appellants are regular importers and they had placed orders for bulk purchase of goods viz. Synthetic Camphor from Hong Kong at USD 1315 per MT. He further submitted that the lower authority has compared an import of 14 MTs imported by some other importers with their import of 84 MTs. He further submitted that the department has now accepted value @ US $ 1350 per MT for the subsequent imports. He, therefore, submitted that the value declared by them at USD 1315 per MT was correct and there was no misdeclaration on their part and there was no valid reason for the enhancement of the value by the authorities below. He, therefore, submitted that the enhancement of value by the authorities below is not sustainable. He further submitted that the appellants had also placed orders for another import of 140 MTs of the goods viz. Synthetic Camphor for US $ 1,89,000/- for supply between 9/2002 and 1/2003. In view of the above submission and in the absence of evidence to reject the transaction value, and the exceptions specified under Sub-rule (2) to Rule 4 of the CVR, 1988, the value declared by the appellants cannot be rejected.
3. Shri A. Jayachandran, learned DR for the Revenue submitted that no contract for bulk purchase of the goods has been produced by the appellants and in the absence of that their plea of bulk purchase was not accepted by the lower authority and it was in that situation that contemporaneous import and price was adopted by the lower authority. He, therefore, submitted that order of the Commissioner (Appeals) is sustainable.
3.1. The learned Counsel in counter submitted that though there is a proforma invoice for bulk purchase of 84 MTs of the goods and this proforma invoice has been signed by the appellants and the authorised signatory of the suppliers at Hong Kong and the purchase order was placed for supply of this bulk quantity of 84 MTs of the goods. The learned Counsel also referred to page 23 of the paper book and submitted that they have opened irrevocable letter of credit for part-consignment which also mentions the proforma Invoice No. 662/00 DD 010119 for a value of USD 36820. He further submitted that even oral agreement could be termed as contract whereas in the present case proforma invoice being a written agreement is a valid contract signed by both the sides, it cannot be brushed aside and it has to be accepted by the authorities and cannot be ignored.
4. We have considered the submissions made by both the sides and we are of the considered opinion that the quantity of 14 MTs imported by some other importers and which is relied upon by the lower authority to enhance the price is not correct since the quantity of 14 MTs is not comparable with quantity of 84 MTs. However, whether the entire quantity of 84 MTs of this proforma invoice under which they had entered into an agreement for import of 84 MTs of Synthetic camphor have actually been imported by them between the period 2/01 and 5/01, the appellants should produce before the adjudicating authority all the invoices and letter of credit pertaining to the import of the total quantity of 84 MTs to satisfy the Commissioner that the contracted quantity of 84 MTs was actually imported by them and after doing so, the declared value of USD 1315 per MT shall be accepted by the authorities. We also observe that the department has now accepted the value of USD 1350 per MT for the subsequent imports of same goods as could be seen from the Bill of Entry No. 433904, dated 19-10-02, a copy of which was produced before us. We, therefore, set aside the impugned order and remand the matter to the original authority for de novo consideration of the matter in the light of the above observation. At this stage, the appellants prayed for a direction to the lower authority to decide the case expeditiously. We direct the original authority to dispose of the matter within a period of two months from the date of receipt of this order. Ordered accordingly.