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1. This appeal is against the order dated 19-10-2001 passed by the Commissioner of Customs, Goa, pursuant to our remand order dated 18-7-2000 passed in an earlier appeal of the present appellants. The facts of the case are, briefly, as follows :- The appellants had imported from Italy a few hundred pieces of "original sculptures" (CTH 9703.00) and sought clearance thereof under Bill of Entry No. 169, dated 13-1-99 declaring the value of the goods as Rs. 3,76,503/- (CIF). After inspecting the goods, scrutinizing the invoice produced by the party and comparing the declared price with the price of what were claimed to be identical goods mentioned in the price list obtained from Internet, the Customs authorities inferred that the goods were grossly undervalued on FOB basis. They, by show cause notice (SCN), dated 1-3-99, proposed to enhance the value to Rs. 63,87,580/- (FOB) on the basis of the price obtained from Internet, in terms of Rule 10A of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. The SCN further proposed to confiscate the goods under Section 111(m) of the Customs Act and impose personal penalty on the importer under Section 112 of the Act. The party contested the proposals and was heard, on the dispute, by the Commissioner on 7-7-99. Subsequently, however, the department obtained a price list dated 7-4-99 (relating to January, 1999) from the Italian manufacturers/suppliers of the goods viz. FLORENCE Sculpture d'arte, and wanted to enhance the value on the basis of that list, giving up the Internet prices. Hence an addendum to the SCN was issued to the importer on 30-9-99. The party did not reply to it, nor did they appear before the Commissioner for being heard in the matter. When the matter was still pending with the adjudicating authority, the party, through their Consultant, requested that authority to take into account the Supreme Court's ruling in Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai [2000 (122) E.L.T. 321 (S.C.)] while determining the assessable value of the goods. The Commissioner, later, passed Order-in-Original dated 28-2-2000 enhancing the value of the goods to Rs. 18,83,101/- (CIF) on the basis of the manufacturer's aforesaid price list, confiscating the goods with option for redemption thereof on payment of a fine of Rs. 12.5 lacs and imposing a penalty of Rs. 7.5 lacs on the importer. It was that order which was challenged in the earlier appeal of the importer and was ultimately set aside under the aforesaid remand order of this Bench. In the remanded proceedings, the party replied to the addendum to the SCN, submitting, inter alia, that the manufacturer's price list was neither contemporaneous nor relating to comparable goods and that the transaction was not at the same commercial level or in substantially the same quantity. They further contended that it was the department's burden to prove that the goods could have fetched any price higher than the declared value. Relying, once again, on the Apex Court's ruling in the Eicher Tractors case, the party, in their reply, urged that the declared price be accepted under Rule 4(1) of the Valuation Rules. The adjudicating authority dubbed the invoice as a manipulated document and refused to recognize the invoiced price as the 'real transacted value'. It held that Rules 4 to 8 of the Valuation Rules were not applicable to the case. The adjudicating authority, professedly acting under Rule IDA, accepted the manufacturer's price list dated 7-4-99 read with its Discount Schedule and enhanced the assessable value of the goods to Rs. 18,83,101/- (CIF) for the purpose of charging duty. The Commissioner confiscated the goods (with option for redemption) and imposed penalty on the party, with no change in the quanta of redemption fine and penalty from those adjudged in his earlier order.

3. Heard both sides. Ld. Consultant for the appellants submitted that the '611' pieces of statues imported by them were made of low cost material viz. clay. The goods were an old left-over stock, which the Italian manufacturer, in July, 1998, agreed to sell to the appellants at very cheap price on the condition that the latter would purchase the entire stock. The Consultant submitted that the goods were not identical with those mentioned in the price list and that the price list itself, being of January, 1999, was not contemporaneous with the goods which were contracted for sale in July, 1998 and shipped in September, 1998. Hence the price list was not liable to be relied upon in determining the transaction value of the goods. The invoiced price was the real transaction value and no valid reason has been stated for rejecting the same. Ld, Consultant also challenged the Commissioner's observation that the invoice was a manipulated document. Relying on the Apex Court's judgment in Eicher Tractors case, he argued that the adjudicating authority ought to have accepted the invoiced price as transaction value under Rule 4(1). Ld. SDR opposed the argument. He submitted that, the price list and the importation both being of January, 1999, the price list was contemporaneous and that 90% of the imported items were covered by the price list. He reiterated the other findings of the Commissioner also.

4.1 First of all, we shall consider the appellants' grievance that the adjudicating authority exceeded the terms of the remand order of this Tribunal while adjudging the invoice to be a manipulated document. We note that, in the addendum to the SCN itself, the department had indicated its disinclination to take cognizance of the invoice for the purpose of assessment of the goods and had proposed to rely on the manufacturer's price list of January, 1999 for the said purpose. This Bench, after taking note of the addendum to the SCN, passed the remand order so as to make available to the party an effective opportunity of meeting the allegations in the addendum as also to ensure that the Supreme Court's judgment cited by the party received due consideration at the adjudicating authority's end. The party, in their letter dated 13-8-2001 submitted in reply to the addendum to the SCN, put forward their defence of the invoice and the invoiced price of the goods and raised their objections to the price list of January, 1999. Strong reliance was placed on the Supreme Court's decision in Eicher Tractors, in support of the plea for acceptance of the invoiced price of the goods. It appears that the Commissioner has rejected all arguments advanced against the price list and accepted those prices as discounted in terms of the Discount Schedule attached to the price list. As regards the invoice price, the Commissioner has not chosen to examine its merits as he did not accept it as a genuine document. He has also not considered the Apex Court's judgment. The Commissioner has only acted short of what he was meant to accomplish under the remand order. Conversely, while reserving (for the moment) our decision on the legality and propriety of the view taken by the Commissioner in relation to the invoice, we hold that he has not acted in excess of the terms of our remand order.

4.5 In the instant case, the Commissioner, obviously, thought, that it was the turn of Rule 10-A to operate when Rule 8 was found to be inapplicable. He has sequentially tried Rules 5 to 8 and found all those provisions to be inapplicable on one ground or the other. Rules 5 and 6 could not be invoked for want of contemporaneous imports from the same country of origin at the same commercial level. Rules 7 and 7A failed for want of sale of like goods in India as also for the reason that it was difficult to compute the value of original sculptures. The residuary Rule 8 did not work on account of nonavailability of data of such goods in India. The adjudicating authority seems to have done well in his sequential attempts to invoke Rules 5 to 8. But his venture into Rule 10A after exhausting the residuary rule is an aberration. It ought to have occurred to him that, beyond the residuary rule, there was no substantive provision for determining the value and that, once Rules 5 to 8 failed, the only course open to him was to examine, in retrospection, as to whether his decision to reject the declared price was correct. Since neither the SCN nor the addendum thereto had alleged that the invoice was a manipulated document, it was not open to the adjudicating authority to dub the document as manipulated. What was open to him was only to examine under Rule 10A the accuracy of the price of the goods mentioned in the document. The Commissioner has not even made an attempt at this.