TaxTMI 
TaxTMI 
2016 (12) TMI 1099
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....S$ 352.35 PMT CIF. Aggrieved by the said order, the respondent filed appeal before the Commissioner(Appeals) who allowed the appeal vide Order-in-Appeal No. 44/2001APVL(JCH) dated 11-10-2001. The Commissioner of Customs(JCH) filed appeal before the Hon'ble Tribunal against the above order of the Commissioner(Appeals). The Tribunal vide Order No. A/347/WZB/2004/C II dated 1/6/2004 remanded the case back on the ground that the Commissioner(Appeals) did not have a chance to take into account evidence of contemporary imports. In the denovo appellate proceedings, Commissioner(Appeals) rejected the appeal vide Order-in-Appeal No. 67/2005(JNCH) and said appeal numbered C/883/05 was pending before the appellate Tribunal. In the meanwhile, the appellant had been importing various consignments of the aforesaid goods and the goods were allowed to be cleared against 83 Bills of Entries which were assessed provisionally. The Asstt. Commissioner vide Order F. No. S/26-Misc-209/2001 Gr. II/(C&D) dated 12-2-2009 finally assessed all the aforesaid 83 provisionally assessed bills of entries considering unit price of US4 352.35 PMT. Aggrieved by the said order dated 12-2-2009 passed by the Asstt. Com....
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....ls) on the case of Varsha Plastics Pvt Ltd Vs. Commissioner of Customs[2004(164) ELT 428(Tri. Del)] is not correct though said case is of valuation of floor sweeping but floor sweeping from one consignment to other varies depending upon the composition of each lot of different polymer therefore Varsha Plastic Pvt Ltd(supra) decision cannot be applicable. 3. On the other hand, Shri. A.K. Prabhakar, Ld. Counsel for the appellant submits that the goods involved in the present case is mixed sweeping material of different polymers. The import was made under contract. The department did not adduce any evidence to show that price declared by the respondent is not correct and the same is influenced by any other consideration. He submits that the floor sweeping material is not a standard in nature and quality, therefore the price of the particular consignment cannot be compared with any other consignment of the floor sweeping polymer material for the reason that every lot of floor sweeping material has different character having different polymers in quantity, quality and purity therefore under any circumstances one lot of sweeping material cannot be compared with any other lot. The basic ....
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.... be arrived after considering the discounts after 35% from the PLATT price of the prime material. Thus, if the floor sweeping is of one particular polymer then 35% discount of that polymer should be provided. However, if the floor sweeping is a mixed material consist of various polymer like LLDPE/HDEP, in such case this guidelines will not be applicable. Further it is observed that the goods being mixed sweeping material the PLATT price of material which is predominant should be taken. In the present case nothing was brought on record regarding the composition of individual polymer therefore predominant of particular polymer is not established. The above guidelines also clearly states that variety of plastic material predominant and floor sweeping shall be mention in the examination reports. However no such exercise was carried out to ascertain the composition of material which bring out the predominant material in the floor sweeping. In absence of such vital fact on record the price declared by the respondent cannot be disputed. The goods in question is floor sweeping of various plastic polymers. The price of the goods varies from one lot of floor sweeping to another lot of floor ....
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....ce not being the actual money paid or payable for the transaction value. There being no other evidence adduced by the Department showing that the price at which they have imported the goods was tainted or it was a case of under valuation. Hence, invoice price should be the transaction value for the assessment of impugned goods in question as held by the Hon'ble Supreme Court in the case of Eicher Tractors Ltd, [2000(122) ELT321(SC)]. The Department has relied on imports made by four Bills of Entry (as detailed below), which cannot be compared with the goods imported under the instant Bills of Entries. Sr. No Bill of Entry Date of Report Description of items Country of origin Qty imported Price per MT(US$) 1. 511543 15.06.2001 Mixed Granules /Powder (Floor Sweeping) USA 61.55 287.60 2. 433802 22.01.201 Mixed Granules /Powder (Floor. Sweeping) Dubai 137.675 300.00 3. 525596 03.09.2001 Mixed Granules / Powder (Floor Sweeping) UAE 48.580 317.00 4. 521672 10.08.2001 Mixed Granules / Powder (Floor Sweeping) Saudi Arabia 64.01 319.00 I find that there is material difference in the commercial level and quantity. Hence the transaction value of these ....
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....very at ::he time and place of importation in the course of 7,Th international trade. It was further held that by Rule 4(1) of Customs Valuation Rules, 1988, 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 this mandate is subject to exceptions specified in Rule 4(2) Customs Valuation Rules, 1988. However, when the transaction value under Rule 4 is rejected, the value shall be determined proceeding sequentially through Rule 5-8 of the Rules." In the case of Rabindra Chandra Paul Vs. Commissioner [2007(209) ELT326(sc)] and South India Television (P) Ltd [2007(214) ELT (SC)), the Apex Court has held. that "transaction value can be rejected if the invoice price is not found to be correct, but it is for the Department to prove that the invoice price is incorrect". However I find that, in the instant case contract was entered into with the foreign supplier registered with the Customs authorities details are as under: was Details of contract ? * Date of Contract Description of goods Quantity Price-02.05.2001. LLDPE/HDPE Mixed Granules/Powder About 1,000MTs US$225/-....
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....8.2010 in the appeal filed by the appellant against Order-in -Appeal No.67/2005 (JNCH) dated 08.06.2005, which in turn arises from the Assessment Order No. S/26- Misc-209/2001 Gr.IIB (JCH) dated 27.06.2001. In the impugned order the adjudicating authority states that valuation has been arrived at by applying Rule-5 of the Customs valuation Rules, 1988 which is applicable for identical goods. Therefore, the contention of the Department that Rule 8 Customs Valuation Rules, 1988 - Residual Method has been applied while determining the import price of Appellant's goods is contradictory and appears to be an afterthought. 13. I find Hon'ble Tribunal in the case of Royal Oil Field Vs. CC Nhava Sheva [2005(780)ELT 394], has observed that "Standing Order issued by the Board laying down guidelines to be adopted in reference to the PLATT'S prices does not have any legal backing when the Tribunal in a number of decisions has held that even the PLATT's prices themselves cannot be made the basis for establishing the charge of undervaluation, in the absence of any doubt about the invoice price". This view of the Tribunal in case of Adani Exports Vs. CC, Vishakhapatnam [2000(116) ELT....