Customs, Excise and Gold Tribunal - Mumbai
Vimal Enterprises Pvt. Ltd. vs Commissioner Of Customs on 7 December, 2000
Equivalent citations: 2001(129)ELT123(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. The appellants were not present. On earlier occasion also they were absent in spite of notice. We therefore proceed to decide the appeal on the basis of documents on records. We have heard Smt. Reena Arya for the Revenue.
2. The appellants imported Audio Magnetic Tape declaring the invoice value at 40 US $ per spool. On investigation with the agent of the manufacturer, it was found that the price list of the manufacturer prescribed the price as 193.24 US $ per spool. It was also found that the marks on the physical goods tallied with the marks given with the price list quoting the higher value. The tapes were found to be of very high quality. Show cause notice was issued proposing enhancement of valuation and confiscation of goods for mis-declaration as also for lack of cover of the licence produced after enhancement of the value. The liability to penalty was also alleged. After hearing the importers the Additional Commissioner passed orders. He recorded that the assessees were not able to produce the manufactures invoice. He dismissed the submission of the importers that the dealers from whom they had purchased the goods might have got a very substantial concession from the manufacturers, as without substantiation with documentary evidence. He also dismissed the claim that the manufacturers prices could have been reduced just before the present imports. He observed that in the absence of contemporaneous imports Rules 5, 6 and 7 did not come into play. He therefore fixed the prices under Rule 8 of the Customs Valuation Rules on par with the manufactures list price. He confiscated the goods but allowed redemption on payment on fine. He confirmed the differential duty. He also imposed penalties on the importers and the Directors thereof. Against this order the importers filed appeals. The Commissioner (Appeals) upheld the enhancement of value but set aside the orders of confiscation and penalty. The present appeal is against this order.
3. In the appeal memorandum no submissions are made at all except to suggest that the agent of the manufacture was a biased and interested person. We have quoted above the relevant observation made by the adjudicating authority. In terms of Rule 10 of the Customs Valuation rules he was empowered to ask for manufacturers price list to determine the veracity of the claim of transaction value. In the present case the manufacturers prices were available. The valuation based thereupon cannot be faulted. The appellants were entitled to contest. They could have produced a letter from their suppliers to the effect that they had got substantiate discount from the manufacturers. They failed to do so. The Customs having established a prima facie case of under valuation, the burden of proving that there was no under valuation had shifted to the appellants. They took no steps to discharge the burden. In this situation, we uphold the impugned order and dismiss the appeal.