Custom, Excise & Service Tax Tribunal
M/S. Sarto Electro Equipment Pvt. Ltd vs Commissioner Of Customs (Acc & Import), ... on 20 February, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/598 & 599/2010-Mum. (Arising out of Order-in-Original No. COMMR/MJ/07/2010 passed by the Commissioner of Customs (Import), Mumbai) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.K. Jain, 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 should 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 Departmental :
authorities?
=============================================================
M/s. Sarto Electro Equipment Pvt. Ltd.
:
Appellant
Prabodh Shah
VS
Commissioner of Customs (ACC & Import), Mumbai
:
Respondent
Appearance
Shri B.R. Tripathi, Adovcate with
Shri H.O. Tiwari, Advocate for Appellant
Shri D. Nagvenkar, Additional Commissioner (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.K. Jain, Member (Technical)
Date of hearing : 20/2/2014
Date of decision : /2014
ORDER NO.
Per : Ashok Jindal
The appellants are in appeal against the impugned order which is as follows:
(i) SCN dated 02.05.2008:
- Transaction value declared in B/E No. 322376 dated 25.10.2007 is rejected and re-determined.
- Duty Confirmed : Rs.2,35,055/-
- Redemption fine : Rs. 83,000/-
- Penalty on SEEPL : Rs.2,35,055/-
- Penalty on Prabodh Shah : Rs.1,00,000/-
(ii) SCN dated 12.06.2008:
- 19 pieces of electronic balances ordered to confiscated but allowed to be redeemed on payment of R.F. of Rs.62,000/-;
- Money of Rs. 1,29,000/- confiscated but allowed to be redeemed on payment of R.F. of Rs.12,000/-
- Transaction value declared in 31 Bills of Entry for the period from 01.09.2003 to 15.09.2007 rejected and re-determined.
(iii) SCN dated 02.09.2008:
- Duty confirmed : Rs.2,22,40,894/-;
- Penalty of Rs. 2,22,40,894/- imposed on SEEPL u/s 114A;
- Penalty of Rs.50,00,000/- imposed on Prabodh Shah u/s 112(a).
- Amount of Rs. 50,00,000/- deposited by SEEPL appropriated against duty demanded. (Totalling Rs.2,24,75,949).
2. The brief facts of the case are of that the main appellant M/s. Sartorius Electro Equipment Pvt. Ltd. (SEEPL) is engaged in the import of Sartorious brand of Electronic Balances. Prior April 2005, the appellant was importing the said goods from M/s. Sartorious A.G., Germany directly and after April 2005 is importing said goods from M/s. Ahmed Systems, LLC, Dubai (authorized distributor). Three show cause notices were issued to the appellants proposing confiscation of the seized imported goods and demanding differential duty on the goods imported during 5 years on the allegation of undervaluation. The main allegation against the appellant is that they have misdeclared the value of goods by using false invoices and price lists, they have fabricated the invoices/pricelists. Therefore, they have undervalued the goods. Accordingly, the impugned proceedings were initiated and after recording the various statements and on the basis of photo copies of invoices supplied by M/s. Sartorious Mechatronics India (Pvt.) Ltd., Bangalore (SMIPL). The conclusion was drawn that invoices shown at the time of importation and are false and fabricated, therefore, the appellants have undervalued the goods. Aggrieved from the said order, the appellants are before us.
3. The Ld. Counsel appearing on behalf of the appellants submitted that initially the appellants were importing the impugned goods directly from M/s. Sartorious A.G., Germany as they were authorized distributor since 1997 till March 2005. After March 2005, the appellants started importing the impugned goods from M/s. Ahmed Systems LLC, Dubai, the another authorized distributor of the principal located in Germany. It is submits that the invoices produced by the appellants are true and correct. He further submits that the case has been made out against the appellants is not based on any incriminating evidence found during the searches conducted at the office and residential premises of the appellants or any authentic or certified documents obtained directly from the manufacturer/supplier by a investigating officer but it is based entirely on documents made available by third party. Therefore, the documents supplied by third-party are inadmissible and not valid documents. The adjudicating authority has relied on the documents supplied by the third-party i.e. letter dt. 3.3.2008 and zerox copies of two unsigned invoices, zerox copy of two more invoices, pertaining to the evidencing price at which M/s. Sartorious A.G., Germany supplied the goods to appellant. The adjudicating authority has relied on the manufacturers pricelists to provide base import prices for redetermination of assessable value and to lend support to assessable value, so determined. The pricelists for the year 2002 and 2006 and the pricelists supplied for the year 2003-2005 and 2007 supplied by the third party. The adjudicating authority has also relied on the print out of selective NIDB data of similar/identical goods imported by Actual User and Market Survey.
4. It is submitted that the letter dt.3.3.2008 is of dubious authenticity and being inadmissible in evidence as no credence can be given. It is submitted that the said letter dt. 3.3.2008 is not a relied upon documents as it has not been listed as a relied upon document. Therefore, the authenticity of the said letter is doubted and the invoices provides as annexure to said letter have no credential value. It is further submitted that the said letter is typewritten on the letterhead of the third party which is 100% subsidiary of the Germany supplier. Therefore the said letter is baseless on baseless assumption and the adjudicating authority has drawn erroneous conclusion. The said letter does not mention the name of the employee who has adopted the socalled unprofessional practice. It is further submitted that the said letter is of having the mentioned of one Mr. Nath, whose cross-examination was not provided. Therefore, there is a violation of principles of natural justice.
5. It is further submitted that the charge of undervaluation is not sustainable on the basis of photo copies of unsigned and unauthenticated documents i.e. invoices/pricelists. In this regard it is submitted that the invoices relied upon by the adjudicating authority are zerox copies of the invoices Nos. 3010101580 dt. 31.05.2005 and 3010194713 dt.13.3.2006 and the same are not signed and even after invoice No. 3010194713 dt.13.03.2006 is on a plain paper no logo of Germany supplier is mentioned on so called invoice. The other two zerox copies of the invoices bearing No.3010082044 dt. 16.3.2005 and 3010087902 dt 14.4.2005 are also not valid or legally admissible as these invoices have not been recovered from the appellants but same has been supplied by the employee of the 100% subsidiary of the manufacturer i.e. (SMIPL) who is competitor of the appellants. It is further submitted that the invoice No. 3017002151 dt. 16.03.2005 and invoice No. 3017002376 dt.12.4.2005 provided by the appellants are signed by the authorized person of the supplier while the invoice of the invoice No. 3010082044 dt. 16.3.2005 has been supplied by Shri N. Ramesh is without any signature. The other invoice No. 3010087902 dt. 14.04.2005 relied upon to challenge the invoice No. 3017002376 dt. 12.4.2005, even though signed, but it is for a different/later date than the Air Way Bill date i.e. after the date of Air Way Bill. As the appellants invoice is on letterhead of the supplier and duly signed and the same was raised prior to shipment and goods were despatched to India under Air Way Bill dt. 13.4.2005. The invoice dt. 14.4.2005 relied upon by the Revenue to challenge the appellants invoice dt.12.4.2005 is only a zerox copy and not the original. Therefore the invoices relied upon by the Revenue were not the part of any genuine record being maintained by the manufacturer located at Germany. It is further submitted that the conclusion drawn by the adjudicating authority that the appellant could have imported goods at their stated price as the same has been obtained by the supplier (M/s. Ahmed Systems LLC, Dubai) at much higher prices is not factually correct and it gets clearly disproved by the evidence to contrary. It is submitted that the appellant has provided the authentic copies of invoices raised by the manufacturer upon M/s. Ahmed Systems LLC, Dubai. and invoices raised by M/s. Ahmed Systems LLC, Dubai on the appellant. These invoices clearly establish that the Duabi Distributor has purchased the goods supplied at lower price and sold them at much higher price to the appellant which has shown by the appellant before the Customs authorities at the time of clearance of the goods. Therefore, the allegation of undervaluation as appellant used fabricated invoices is not sustainable to support this contention. He relied on the decisions as follows:
(1) CC, Mumbai Vs. Bussa Overseas 2007 (216) ELT 659 (S.C.)] wherein the Apex Court held that no evidence of undervaluation in case particularly when the department is relying upon unsigned Xerox copies of documents in support of its case.
(2) Gayadia Algu Metal Refinary Vs. CC, Mumbai 1998 (98) ELT 481 (T)] wherein it is held that unsigned invoices is not an invoice at all.
(3) Truwoods Pvt. Ltd. Vs. CC, Vishakhapatnam 2006 (204) ELT 288 (T) wherein it was held that photocopies of documents received from foreign customs authorities without their signature/seal, cannot be relied on to enhance value.
(4) Venus Enterprises Vs. CC, Chennai 2006 (199) ELT 661 (T) wherein it was held that unauthorized and unsigned documents cannot be used to enhance invoice value in respect of parallel invoices.
(5) Deepak Enterprises Vs. CC, Kolkata 2003 (159) ELT 851 (T) wherein it was held that charge of undervaluation not sustainable on the basis of photocopies of unsigned and unauthenticated documents.
6. It is further submitted that Revenue has not procured any evidence to show that appellant has paid more than the declared price i.e. the appellant has paid any amount over and above the transaction value to their supplier. It is further submitted that all the payments were made to the supplier through banking channels only. Therefore, it is submitted that demand is not sustainable to support this contention he relied upon the Tribunals decision in the case of H.T. Company Vs. C.C, Hyderabad [2007 (208) ELT 507 (Tri.-Bang.)] wherein it was held that no evidence that appellant has paid extra amount to foreign supplier through channels other than banking channels, the transaction value is to be accepted. In the case of Oleofine Organics (India) Pvt. Ltd. 2004 (169) ELT 98 (T), it was held that Revenue have not produced any evidence to show that appellant has paid more than transaction price, therefore, the transaction value cannot be rejected.
7. It is further submitted that the declared price is genuine and correct therefore transaction value cannot be rejected under Section 14 of the Customs Act, 1962. As the appellants are not related to their foreign supplier of the goods and not interested in the business of each other, the price/transaction value is the sole consideration of sale, quantity discount has been given by the supplier and the distributor, there is no after sale service or replacement guarantee by the distributor and full advance payment has been made by appellant. Therefore, the appellant is not having any choice of refusing old discontinued models and accepting the stock lots from the supplier and the distributor. It is further submitted that the learned adjudicating authority failed to appreciate the fact that it is well settled principle that transaction value cannot be rejected except under special circumstances mentioned under Rule 4(2) of Customs Valuation Rules 1998/Rule 3(2) of Customs Valuation Rules 2007. To support this contention he relied on the decision of Tribunal in the case of P,V. Ukkru International Trade Vs. CC, 2005 (187) ELT 489 (CESTAT). In this case, the learned Commissioner has rejected the transaction value declared by the appellant without specifying under what provisions of Rule 3(2) ibid the declared transaction value is not acceptable. It is also submitted that the Learned Commissioner has not appreciated the law laid down by the Apex Court in the case of Eicher Tractors Vs. CC reported in 2000 (122) ELT 321 (SC) wherein it has been held that unless and until transaction value is rejected on account of existence of special circumstances as per Rule 4(2) ibid/Rule 3(2) ibid, of the Customs Valuation Rules, the assessable value cannot be determined by proceeding sequentially under the Valuation Rules. The Learned Commissioner has not specified any ground as to why the declared import price could not be accepted. Therefore, the rejection of transaction value merely because the pricelists gathered from 100% subsidiary of supplier located at Bangalore (competitor of the appellant) showing higher unit price, it cannot be justify and legally sustainable for rejection of transaction value. In support this contention is also placed on the following decisions:-
(i) Gujarat Ambuja Cements Vs. CCE [2003 (157) ELT 188 (CESTAT)]
(ii) Andhra Sugars Vs. CCE [ 2006 (193) ELT 68 (CESTAT)]
(iii) Agarwal Industries Vs. CC [2006 (193) ELT 421 (CESTAT)]
(iv) Aditya Fuels Vs. CC [2006 (201) ELT 464 (CESTAT)]
(v) Puspanjali Silk P. Ltd. Vs. CC [2009 (238) ELT 135 (Tri.).] He further submits that no evidence of undervaluation in the case particularly when the department is relying upon unsigned zerox copies of so called manufacturers pricelists in support of this case. It is submitted that the pricelists for the year 2002 and 2006 which are said to be the manufacturers pricelists are only zerox and unsigned copies. These pricelists are not certified by the supplier of the goods or from their authorized officers. These are not even on the letterhead on the parent company and does not bear sign or logo of the parent company. Therefore, the same cannot be relied upon. The pricelists for the year 2003 to 2005 and 2007 which are claimed to be evidencing transfer price to the 100% subsidiary are in-house prepared documents by the subsidiary. These are neither manufacturers price list nor these so-called transaction pricelists are any where authenticated or certified by the parent company. The pricelists for 2003-2004 is in fact a single pricelists parallely depicting transfer prices for 2003 and 2004 simultaneously. These pricelists is not contemporaneous document but only a post-facto creation of the subsidiary company and have no evidentiary value and validity especially in the absence of any authentication by the parent company. The pricelists for the year 2005 is again neither on the letter head of any company, nor it bears the logo of parent company. Similarly, the price for the 2007 is also neither on letterhead of any company nor bears of logo of company. Therefore, the unsigned and the unauthenticated documents cannot be relied upon to sustain the charge of undervaluation. It is further submitted that adoption of so-called transfer price lists supplied by Indian subsidiary in connection with imports made from parent company is not at arms length price cannot be adopted for determination of import price. Such method of valuation is not envisaged either by Rule 4 or Rule 5 of the Customs Valuation Rules. In this case, the Revenue has failed to re-determine the value of impugned goods on the basis of any evidence of transaction value as such of identical goods imported in India in a sale at same commercial level, but has relied on unauthenticated and uncertified pricelists obtained from the Indian subsidiary. Therefore, the pricelists cannot be relied upon to support this contention is relied on the decision of Eicher Tractors Ltd. Vs. Commissioner of Customs, Mumbai [2000 (122) ELT 321 (S.C.)] and Deepak Enterprises Vs. Commissioner of Customs [2003 (159) ELT 851 (T)].
8. It is further submitted that the transaction value canbe rejected only if sale of goods is at the same commercial level i.e. the goods are imported by actual users and importing trader/distributor are not at the same commercial level. Therefore, the NIDB data relied upon by the adjudicating authority reflects the import made by the actual users and the quantity shown is very less. Whereas, the appellant being a trader has imported the goods in regular course of his business being a trader. Therefore, the comparison from invoices/NIDB data from non-related importer cannot be ground for rejection of transaction value. To support this contention he relied on the decision of Devika Trading Pvt. Ltd. Vs. CCE, Mumbai, [2004 (167) ELT 75 (Tri.Mumbai) and Banant Industries [1996 (81) ELT 195 (S.C.). In last it is submitted that the selective local market price of the imported goods cannot be relied on to reject the declared transaction value. It is further submitted that the seizure of goods imported under bill of entry No. 322376 dt. 25.10.2007 stands dissolve as to show cause notice under Section 124 of the Customs Act, 1962, has been issued beyond the period of six months stipulated under Section 110(2) of the Act. To support this contention he relied on the decision of Jatin Ahuja Vs. Union of India reported in 2013 (287) ELT 3 (Del.). It is further submitted that as there is no mens rea, the penalties are not imposable on the appellants. It is further submitted that the illegal correction of the order through issue of corrigendum is not sustainable as it changes the whole terms of the order. Therefore, it is prayed that impugned order is to be set aside.
9. On the other hand, Learned A.R. supported the impugned order and submits that it is fact on record that the distributor agreement has been ended on 31.3.2005. Due to unprofessional practice of correction of documents not reflecting full value of goods thereafter the appellant has imported the goods from M/s. Ahmed System LLC, Dubai , who has trader in this case the Adjudicating Authority has relied on the document provided by 100% Indian subsidiary of the main supplier as evidence of valuation. It is submitted that the invoices dt. 16.3.2005 and 12.4.2005 produced to Customs at the time of import by the appellant and invoice dt. 16.3.2005 and 14.4.2005 relied upon by the department during investigation which were supplied by the supplier through their Indian subsidiary and on comparison of the said document, it is seen that all the details are identical except the invoices not transferred. The supplier of these invoices has been cross-examined. Therefore these invoices are admissible evidence and to establish the modus of undervaluation adopted by the importer for the period after 31.3.2005, pricelists of the manufacturer for the year 2005 and 2007 were relied upon by the department as evidence of value. The same shows the comparison between the pricelists of manufacturer and prices claimed in 2005 by M/s. Ahmed System LLC, Dubai , data of contemporaneous import into India for the period 2005-2007 from the NIDB data even also relied as evidence of value. The second appellant has admitted undervaluation in his statement dt. 26.11.2007. Therefore, the charge of undervaluation is established by the department through various evidence, therefore the impugned order is sustainable. To support his contention Revenue relied upon the decision of Pan Asia Enterprises Vs. Collector of Customs, Bombay reported in 1995 (79) ELT 322 (Tribunal), 1997 (94) ELT A59 (S.C.) and Vimal Enterprises Pvt. Ltd. Vs. Commissioner of Customs, Mumbai reported in 2001 (129) ELT 123 (Tri.Mum.).
10. After hearing both the sides and perusal of the documents placed before us. We find that in this case, the charge against the appellant is that they have undervalued the goods at the time of importation. To prove this charge, the following documents have been relied upon by the Adjudicating Authority:
(a) Zerox copies of two unsigned invoices bearing No. 3010101580 dated 31.05.2005 and 3010194713 dated 13.03.2006.
(b) Zerox copies of two more invoices bearing No.3010082044 dated 16.3.2005 and 3010087902 dated 14.04.2005.
( c) Manufacturers pricelists supplied by M/s. SIMPL, Bangalore.
(d) Pint out of selective NIDB data and
(e) Market Survey.
The contention of the Ld. A.R. is that as the allegation of undervaluation has been proved by way of invoices relied upon by the adjudicating authority and the pricelists of manufacturers. Therefore the allegations proved.
11. Before arriving at the decision that whether the charge against the appellant is sustainable or not, first we have to ascertain whether the documents relied upon the adjudicating authority are genuine/authenticated documents or not? The invoices provided by M/s. SMIPL, Bangalore through their letter dt. 3.3.2008 are of two unsigned invoices issued to M/s. Ahmed System LLC, Dubai, by the principal manufacturer of the goods located in Germany. These invoices are annexure to the letter dt. 3.3.2008 but the letter dt. 3.3.2008 is not a relied upon document. Therefore, the invoices relied upon by the adjudicating authority creates doubts about genuineness of these invoices as same has been provided to the adjudicating authority by M/s. SMIPL, Bangalore, (a competitor of the appellant) through a letter dated 3.3.2008 which is not a relied upon documents. Further more, these invoices No. 3010101580 dated 31.05.2005 and 3010194713 dated 13.03.2006 are not even signed by any authorized person. Moreover, the invoice No. 3010194713 dated 13.03.2005 is on plain paper and has not mentioned the name of supplier, nor logo of the supplier is printed on the invoice. Further, the other two zeorx copies of the invoices supplied by the subsidiary company located in Bangalore (competitor of the appellant) is also not valid and legal admissible documents as the invoice No.3010082044 dated 16.03.2005 is without signature and is provided by the competitor only. Further, the invoice No. 3010087902 dated 14.04.2005 although signed but is for a different/later date than the Air Way Bill date. In fact, the invoice provided by the appellant i.e. invoice No. 3017002376 dt. 12.4.2005 is on letterhead of the supplier and duly signed and same was raised prior to shipment under Air Way Bill dt. 13.4.2005. But the invoice No. 3010087902 dated 14.04.2005 relied upon by the adjudicating authority has been supplied by the competitor of the appellant and same is after the date of the Air Way Bill through which the goods were supplied to the appellant and is a zerox copy not the original document. All these invoiced have been supplied by the competitor of the appellant and are zerox copy only. Therefore, the genuineness of these invoices is doubted, as held by the Honble Apex Court in the case of M/s. Bussa Overseas (Supra) wherein the Honble Apex Court held that when the department is relying upon unsigned zerox copies of the documents in support of the allegation of undervaluation, the same cannot be relied. Further, this Tribunal held in the case of Gayandin Algu Metal Refinary (supra) that unsigned invoices is not an invoice at all. In the case of Truwoods Pvt. Ltd. (supra), this Tribunal has again held that photocopies received from the foreign customs authorities without signature/seal, cannot be relied on to enhance value. In the case of Venus Enterprises (supra) also, this Tribunal again held that unauthenticated and unsigned documents cannot be used to enhance invoice value in respect of parallel invoices. Further in the case of Deepak Enterprises (supra), this Tribunal again held that charge of undervaluation is not sustainable on the basis of photocopies of unsigned and unauthenticated documents.
12. It is admitted fact that the invoice relied upon by the adjudicating authority are supplied by the competitor of the appellant i.e. M/s. SMIPL, Bangalore and all the invoices are photocopies and three invoices are not even signed and the invoices are not on the letterhead of the principal manufacturers of the goods. Therefore, relying on the above said decisions the genuineness of these invoices is doubtful, hence, these invoices cannot be relied to enhance the assessable value.
13. Further, the Revenue has failed to prove that any amount over and above invoice price shown by the appellant at the time of clearance of the goods have been said by any other channel to the supplier of the goods or through any person. Relying on the decisions of [H.T. Company (supra), wherein this Tribunal has held that when there is no evidence that appellant had paid extra amount to the foreign supplier through channels other than Banking Channels transaction value cannot be rejected. Further in the case of Olefine Organics (India) Pvt. Ltd. again this Tribunal held that if Revenue has not produce any evidence to show that appellant paid more than declared price transaction value cannot be rejected.
14. Admittedly, in this case, there is no evidence brought on record by the Revenue that appellant has paid any amount over and above invoice price shown at the time of clearance of the impugned goods. Therefore, the charge of undervaluation is not sustainable on this account.
15. The Adjudicating authority has also relied during the course of adjudication on the manufacturers pricelists. On examination of these pricelists, we find that these pricelists were also provided by M/s. SMIPL, Bangalore. (the competitor of the appellant). The pricelists for 2002 and 2006 are only zerox and unsigned copies. They are not certified by the parent company or by their officer. They are also not on the letterhead of the parent company, which are on plain paper and do not bear any signature and logo of the parent company. Therefore, these pricelists are not reliable documents and creates doubts on their genuineness. The pricelists produced for the year 2003, 2005 and 2007 are in-house prepared document by M/s. SMIPL, Bangalore (the competitor) as same was not authenticated or certified by the parent company. Pricelists for the year 2003 and 2004 is a single pricelists paralllely depicting transfer price for the year 2003 & 2004 simultaneously. As these are not authenticated by the parent company, therefore cannot be relied upon. The Pricelists for 2005 is not on letterhead and also does not bear any logo of the parent company. Similarly, pricelists for the year 2007 is not on letterhead and also does not bear logo of the parent company. Further, price lists for the year 2005 is having the unit price in Euros and pricelists of 2007 having unit price in Dollars and on perusal of the same it comes out that prices shown in the pricelists 2007, if converted into Euros, are less price than for the prices shown in the pricelists of the year 2005. In these circumstances, the pricelists themselves create doubts of their genuineness as for different period the price lists were issued in different currencies. The Revenue has not confirmed about the issuance genuineness of the pricelists or the invoices which has been relied upon from the principal manufacturer located in Germany. In these circumstances, the unsigned and unauthenticated documents cannot be relied to sustain the charge of undervaluation as discussed above. Further, we find that during the course of examination of Shri N. Ramesh when a question was put regarding supply of copies of invoice. He submitted that he does not remember who gave invoices to him which also creates doubts on the genuineness of the issuance to these invoices from the parent company. We also find that the pricelists of the foreign supplier/manufacturer is not a proof of transaction value inevitable and existence of pricelists cannot be the sole reason to reject the transaction value. In fact the pricelists is merely general quotas and prices can be negotiated at the time of placing the order for importation of the goods. The same view has taken by the Honble Apex Court in the case of Eicher Tractors Ltd. (supra). Again in the case of Deepak Enterprises (supra) this Tribunal held that valuation at higher prices not sustainable merely on the basis of pricelists and/or proforma invoice.
In these circumstances, to enhance the transaction value, the pricelists are not reliable documents, therefore, the transaction value cannot rejected.
16. We have examined the NIDB data of the goods imported by the actual user and not by any trader. Further the quantity is also not the same as imported by the appellants. Therefore, the same cannot be relied upon as the contemporaneous import of the importer. As per NIDB data the transaction are not on the same commercial level of the appellant. Further, we find that the appellant is importing in large quantity of goods on regular basis for a long period of time and the goods imported are of stock lots, the NIDB data of the transactions of small quantity by actual users cannot be relied upon. In this case the department has selectively relied upon NIDB data to support that the appellant has shown much lower prices of the identical goods. The NIDB date can be relied only in situation when the imports of similar goods in the same quantity and during the same period by a person equally placed to the appellant. Admittedly, in this case NIDB data relied upon by the adjudicating authority is for the goods imported by actual users and in low quantity. Therefore, the same cannot be relied to enhance the transaction value and the same cannot be support to enhance the transaction value as per pricelists.
17. Further, the adjudicating authority has relied upon the local market price of the imported goods to reject the transaction value. In that context, we find that the adjudicating authority has relied on selective invoices of the impugned goods which shows that there a huge difference in sale price and the import price but the adjudicating authority has failed to appreciate the fact that in most of the cases the appellant has sold the goods relatively comparable price and in some case at a lower price of the import price of the goods. Therefore, the local market price cannot be sole ground for rejection of the price of imported goods.
18. We further, find that the adjudicating authority has relied upon the NIDB data to lend support to enhance transaction value as per price lists.
19. As per above discussion, we hold that the NIDB data cant be used to lend support to enhance transaction value on the basis of price lists as the NIDB data cant relied as contemporaneous imports.
20. Further we find that the goods imported under bill of entry No. 322376 dt. 25.10.2007, the show cause notice came to be issued on 2.5.2008, which is beyond the prescribed period of six months under Section 110(2) of the Customs Act, 1962. The seizure in that case is dissolved and goods were required to be release unconditional immediately to the appellant as show cause notice came to be issued after expiry of six months beyond the period of limitation in the light of the decision of the Honble High Court of Delhi in the case of Jatin Ahuja (supra). Wherein it was held that if no show cause notice is not issued within period prescribed under Section 110(2) of the Customs Act, 1962, the goods are to be returned to person from whom possession, they were seized.
21. With these terms, we find that the adjudicating authority has failed to establish the genuineness of the invoices and pricelists. Further, the NIDB data relied upon cant lend support to enhance the transaction value as per price lists. The local market survey cannot be evidenced to enhance the transaction value.
22. In these terms, we set aside the impugned order and allow the appeals with consequential relief if any.
23. The adjudicating authority is directed to comply this order within 60 days of its communication.
(Pronounced in court on )
(P.K. Jain)
Member (Technical)
(Ashok Jindal)
Member (Judicial)
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