TaxTMI 
TaxTMI 
2022 (3) TMI 870
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.... Sr. No. . Bill of Entry No & Date Description of Goods Qty Weight Declared Value/Unit 1 24-dated 13.04.2012 (Manual Format) Cold Rolled Steel Sheet in Coils 119 1352.15 0 MT US$ 713 Per MT 2 6544627 dated 16.04.2012 Cold Rolled Steel Sheet in Coils 149 1660.35 0 MT US$ 713 Per MT 2.2 The Appraising Group - IV, while assessing the goods, enhanced the assessable value to US$ 722 PMT and US$721.64 PMT respectively, as against the declared value of US$713 Per MT. However, no speaking order to that effect was passed by Department. The appellants cleared the goods for home consumption after paying appropriate duty on the enhanced value as assessed by the Department, under protest. 2.3 Being aggrieved of the value loading, the appellants filed the appeals before the Commissioner (Appeals). The appeals filed were dismissed as per the impugned order referred in para 1 above. 2.4 Aggrieved appellant have filed these appeals. 3.1 We have heard Ms Shamita Patel, Advocate for the appellant and Shri Manoj Kumar, Deputy Commissioner, Authorized Representative for the revenue. 3.2 Arguing for ....
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.... along with the submissions made in appeal and during the course of arguments. 4.2 Commissioner (Appeals) has by the impugned order recorded her finding while upholding the assessment order enhancing the value as declared by the importer as follows: "I have gone through all the relevant documents & submissions made by both the parties relating to the issues relating to the issue. The question is to decide whether the value loading by the Department is proper or not. 6. It is submitted by the appellants that they have entered into a contract with the supplier in 19.01.2012 backed by Irrevocable Letter of Credit dated 20.01.2012 and prices matching with London Metal Bulletin (L.M.B.) dated 23.01.2012 to 30.01.2012. Thus they contend that their price was unquestionable. But the respondents through their written submission vide letter F. No. S/26-Misc-69/2011-12 GR IV dated 15.05.2013 have refuted the appellant's contention, on the ground of the guidelines of the Directorate of Valuation that goods are valued as per the L.M.B. prices on or near the Bill of Lading date. In the instant cases the B/L date for both the Bills of entry was 26.03.2012. ....
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....ct submitted by the appellants nor they could prove the same." 4.3 The entire findings of the Commissioner (Appeal) are based on the London Metal Bulletin, which as per her is to be as close as possible to the date of Bill of Lading. The above contention of the Commissioner (Appeal) cannot be upheld. In case of Agarwal Industries Ltd. [2011 (272) ELT 641 (SC)], Hon'ble Apex Court has held as follows: "11. On a plain reading of Sections 14(1) and 14(1A), it is clear that the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in Section 14(1) of the Act. Section 14(1) is a deeming provision as it talks of deemed value of such goods. The determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1) of the Act. Conjointly read, both Section 14(1) of the Act and Rule 4 of CVR, 1988 provide that in the absence of any of the special circumstances indicated in Section 14(1) of the Act and particularized in Rule 4(2) of CVR 1988, the price paid or payable by the importer to the vendor, in the ordinary course of international trade and commerce, shall be taken to be the transaction....
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.... is chargeable on goods. According to Section 14(1), the assessment of duty is to be made on the value of the goods. The value may be fixed by the Central Government under Section 14(2). Where the value is not so fixed it has to be decided under Section 14(1). The value, according to Section 14(1), shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale, for delivery at the time and place and importation in the course of international trade. The word "ordinarily" implies the exclusion of special circumstances. This position is clarified by the last sentence in Section 14(1) which describes an "ordinary" sale as one where the seller or the buyer have no interest in the business of each other and price is the sole consideration for the sale or offer for sale. Therefore, when the above conditions regarding time, place and absence of special circumstances stand fulfilled, the price of imported goods shall be decided under Section 14(1A) read with the Rules framed thereunder. The said Rules are CVR, 1988. It was further held that in cases where the circumstances mentioned in Rules 4(2)(c) to (h) are not applicable, the Department is bound to a....
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....e consideration; and to give the reasons supported by material on the basis of which the Assessing Officer arrives at his own assessable value." 4.4 From the observations made by the Hon'ble Apex court the transaction value as declared by the importer should form the basis for determination of the assessable value for levy of custom duty. The transaction value as declared should normally be accepted and should be rejected only if the revenue has evidence to show that the transaction value do not reflect the actual transaction price in the course of international trade. Contemporaneous import at much higher transaction value, can be a reason for rejection of the declared transaction value. Interestingly revenue has not produced any evidence to that effect, on contrary appellants have produced the evidence before the Commissioner (Appeal) where in the same goods from the same supplier and shipped in the same vessel have been assessed accepting the transaction value which is less than that declared by the appellant. It is evident from the Bill of Entry No.6429986 dated 31-3 2012 filed by M/s Rajan Kumar & Bros Impex that the goods imported by them were also "Cold Rolled Steel Sheet....
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....e of any contemporaneous imports of identical goods reliance on LME cannot be sustained. Inasmuch as in the present case there is no other evidence for enhancement of the value we do not find any justification in doing so. Accordingly that portion of the impugned order vide which the Commissioner has enhanced the value, is set aside." 4.6 Commissioner (Appeals) has in her order placed reliance on decision of Hon'ble Apex Court in case of Radhey Shyam Ratanlal [2009 (238) ELT 14 (SC)],. The reasons as noted for by the Hon'ble Apex Court for the rejection of transaction value are extracted below: "21. We are required to apply the aforesaid provision to the facts and circumstances of the present case and when done so it would appear that the appellant although claimed a transaction value, but such value could not be supported by production of the original contract or the invoices relating to procurement of cloves to the appellant under the ten Bills of Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23-11-2000 cannot be termed as a contract between the parties and it is merel....