TaxTMI 
TaxTMI 
2011 (2) TMI 742
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.... August, 2010 respectively; under the contract dated 15th March, 2010, they imported 1,914 MT covered by 12 Bills of Entry; under contract dated 1st August, 2010, they imported 1,687.8 MT covered by 12 Bills of Entry, all the bills of entry, except two bills of entry dated 14.10.2010 and 19.10.2010, are provisionally assessed in terms of the order of the Hon'ble Kerala High Court and in respect of one bill of entry, no assessment is made; imports have taken place from April, 2010 to October, 2010; DGFT had issued Notification dated 4th June, 2008, permitting free import of betel nuts of the value above Rs.35/- per Kg., they challenged the notification of the DGFT before the Hon'ble Kerala High Court and vide the judgment dated 2.11.2010, the Hon'ble Kerala High Court set aside the said notification of DGFT; they had filed writ petition before the Hon'ble Kerala High Court in respect of two consignments, which are subject matter of this appeal seeking provisional release. The learned adjudicating authority finally assessed two bills of entry, after giving the appellants query memo; their CHA approached the learned adjudicating authority on 19.11.2010, with a letter dated 19.11.2010,....
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....ishing that the transaction value was not genuine and that Rule 12 does not provide a method for determination of the value of the imported goods. Rule 12 only provides mechanism and procedure for rejection of the declared value in case of reasonable doubt that it does not represent the transaction value. 6. He further submitted that if, the transaction value can be determined under Rule 3(1) CVR, 2007 and the transaction does not fall under any of the exception in Rule 3(2), there is no question of determining the value under the sequential rules. He submitted that there are no allegations of mis-description of the goods. The lower authorities did not find that invoices and the transaction covered thereby were fake, fabricated or fictitious. The lower authorities did not doubt the genuineness of transaction or that the transaction value shown in invoice has not been actually paid by the importer. No allegation of any other consideration for sale of goods is found by the lower authorities. The supplier is not related to the appellants. The price is paid through proper banking channels against the documents 7. It was further contended that so called contemporaneous imports are....
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.... ELT 447 (Tri.-Mumbai) (xvi) Radhey Shyam Ratanlal Vs. CC (Adjud.), Mumbai - 2009 (238) ELT 14 (SC) (xvii) CC, Trichy Vs. Kiran Pondy Chem. Ltd. - 2010 (259) ELT 570 (Tri.-Chennai) 9. Shri P. R. V. Ramanan, the learned Special Counsel, while supporting the orders of the authorities below, submitted that the appellants do not deserve the out of turn hearing. They can always pay and clear the goods and can seek the refund, if they succeed in the appeal. He further vehemently contended that enhancement of the value is correct and proper in law. He submitted that department has shown the evidence that import at the other ports are at a higher value. The appellants have not been able to dispute the evidence produced by the department of comparable imports at a higher value. The other imports relied upon by the department clearly shows that quantity does not seem to be a criteria for the price as even consignment of less than 20 MT is sold at the same price as the consignment of 105 MT. He further argued that reasons set out in the Explanation (1) (iii) to Rule 12 is only inclusive and not exhaustive as the expression used is #reasons which may include#. The Commissioner of Cust....
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.... CVR, 2007. The lower authorities have not found that there are restrictions as to the disposition or use of the goods by the importer; the sale or price is not subject to any condition or consideration for which a value cannot be determined in respect of the goods being valued; no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller; and that buyer is related to the Seller. The other imports relied upon by the department are not of the same quality, quantity and commercial level. 13. In our view, judgment of the Hon'ble Apex Court in the case Eicher Tractors Limited (supra) squarely applies in the present case and the transaction value was required to accepted for the purpose of assessment. The Hon'ble Apex Court was pleased to hold that: "8.?Reading Rule 3(i) and Rule 4(1) together, it is clear that a mandate has been cast on the authorities to accept the price actually paid or payable for the goods in respect of the goods under assessment as the transaction value. But the mandate is not invariable and is subject to certain exceptions specified in Rule 4(2) namely : (a) there are no rest....
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....going through the records, we find that the Commissioner of Customs has held that the supplier in the present case was not the manufacturer itself and that the importer and the supplier were related. The Commissioner has further recorded a finding to the effect that prices declared by the appellant were not true transactional value and that they were importing the goods at a lower price to evade the customs duty. The aforesaid findings were challenged before the Tribunal. The Tribunal has considered the respective cases and finally upheld the aforesaid findings mainly relying upon the prices of similar goods. 7.?It cannot be disputed that in the present case invoice of the manufacturers was not produced. The findings of the Commissioner as also of the Tribunal are that the prices declared is not the transactional value, which is established from the fact that price of similar goods imported by the appellant was even higher. In our considered opinion, the deemed value of the goods as shown by the Department would definitely prevail over the transactional value shown by the appellant in the present case. The crucial fact is the fact that similar goods imported by the appellant its....
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.... Rs.6,81,840/- 21. We find from the above chart that description of the comparable imports relied upon by the department is not the same. No material is produced on record to show that the imported goods under assessment and goods imported at other ports are of the same quality, quantity and commercial level. The imported goods are agricultural produce and have different varieties. The goods imported by the Appellants are described as "Betel Nuts Split Lali-Grade C - Ungarbled", whereas other imports are of "Betel Nut Lali" and "Betel Nut Split". No material is on record to show that they of the comparable quality. We find that there is no material whatsoever to show that the comparable imports are at same commercial level. Admittedly, the quantity imported by the appellants is much higher than the comparable imports. There is a dispute as to the quantity, description, and supplier regarding the contracts produced by the appellants. We find from the record that Bills of Entry were filed on 14.10.2010 and 19.10.2010. The Hon'ble High Court on 12th November, 2010, granted permission to the appellants to approach the assessing officer for provisional clearance. The appellant's CHA ....
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....M/s. Keveeyam Company had entered into a contract for 1200 MT of import of Betel Nuts. He has also noted the facts of several imports from the same supplier by the appellants. Under these circumstances, there is no need for the Revenue to doubt that a contract existed between the appellants and the foreign supplier. The appellants have also stated that they visited the foreign country to negotiate the price. The appellants have produced bank documents to show the dispatch of the transacted amount. Revenue has not established that the appellants paid more than the transaction value through some other channel. Revenue does not have any strong reasons to assail the invoices produced by the appellants. Moreover, there is no evidence that the import effected through the other Ports pertain to goods of the same quality imported by the appellants through Cochin Port. In the absence of quality, quantity and commercial level, no comparison can be made. It is also a fact that Revenue has not produced copies of invoices relied on. This amounts to denial of Principles of Natural Justice. While rejecting the transaction value, Revenue has not followed the ratio of the Eicher Tractors case cited....
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.... including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of Rule 3. (2)?At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation : - (1) For the removal of doubts, it is hereby declared that : - (I) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with Rules 4 to 9. (ii) The declared value shall be acc....
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.... Tribunal in the case of Mark Auto Industries Ltd. v. CC, New Delhi - 2003 (162) E.L.T. 261 and Devika Trading Pvt. Ltd. v. CC, Mumbai - 2004 (167) E.L.T. 75. Since the only basis for rejecting the transaction value is the noticing of contemporaneous imports at higher prices, the transaction value was required to be accepted, and we, therefore, set aside the impugned order of rejection of transaction value and loading of value, and allow the appeal." 25. In our view, the rejection of transaction value in the facts of the present case is thus clearly contrary to the above decision of the Hon'ble Apex Court and the Tribunal and cannot be sustained. 26. We hold that in the present case, there is no material on record to reject the transaction value and the comparable imports on which department seeks to rely upon are not comparable and the transaction value declared by the appellants requires to be accepted and we order accordingly. 27. Having regard to the aforesaid facts and once we have held that the Customs Authorities are bound to accept the transaction value, we direct them to allow clearance within 3 days as held by the Tribunal in the case of Rational Art & Press Limi....