TaxTMI 
TaxTMI 
2001 (8) TMI 247
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...., the prayer for taking up the matter is accepted and the appeal is taken up for consideration as there is enough time left with the Tribunal. Further, on consideration of the submission, we notice that the stay application is infructuous in view of the appellants not having cleared the goods. The only question that is required for consideration is whether the original authority has considered all the submissions made by the appellants in their written submission dated 7-10-2000 although they have voluntarily given up the right to show cause notice as well as personal hearing. Therefore, they cannot make grievance on all these points as rightly contended by the DR. However, the learned Counsel has shown that they had taken a ground in their reply dated 7-10-2000 that there was no under valuation for bulk purchase and the negotiated price should be accepted in the light of the Supreme Court judgement in the case of Eicher Tractors (supra). We have also perused the written reply furnished by the appellants vide their letter dated 7-10-2000 and we find that they have put down these grounds. From the impugned order, we find from that the Commissioner has not adverted to these pleas rai....
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.... by the appellants in the Bill of Entry. Therefore, the authorities initiated proceedings to enhance the value as declared by the appellants at US$ 0.40 to US $ 0.65 per MT. Appellants took the plea that goods of M/s. Rahul Enterprises had not been tested and they were not same goods in nature, quality, quantity and therefore its price cannot be adopted. They forcibly pleaded before the Bench that the transaction value cannot be discarded unless evidence of contemporaneous nature is produced. They contended that Bill of Entry of M/s. Rahul Enterprises was of different goods and it was not of contemporaneous nature and the enhancement of value was not in keeping with the ruling of the Tribunal and the Apex Court judgment as held in Eicher Tractors Ltd., 2000 (122) E.L.T. 321 (S.C.) and that of Mirah Exports Pvt. Ltd. - 1998 (98) E.L.T. 3 wherein the Apex Court had held that negotiated price amounted to 50 to 70% discount and list price was permissible and such discount even upto 70% is acceptable. Appellants contended that the quantity of their import was five times more than the quantity imported by Rahul Enterprises besides the plea that the goods were not be the one and the same.....
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....l Distributors have imported a larger volume, there is no documentary evidence to show they were given any special discount as a consequence. Therefore, the finding of Hon'ble Supreme Court in the case of Mirah Exports may not be be applicable to the facts of the present case. The Advocate of the importers had contended that the Hon'ble Supreme Court in the case of Eicher Tractors have held that transaction value can be rejected only under the conditions specified in Rule 4(2) of Customs Valuation (Determination of Prices of Imported Goods) Rules, 1988. As already indicated, subsequent to the said imports, the rules have been amended authorising the proper officer to reject the transaction value under Rule 10(A) also. Therefore, there is no infirmity in invoking Rule 10(A) and rejecting the present declared value. The importers have also contended that the imports by M/s. Rahul Enterprises, Bangalore cannot be treated as identical because the present goods were declared as "Nylon Oxford PVC Coated Fabrics" whereas M/s. Rahul Enterprises has described as "PVC cloth". Secondly, the exact chemical composition of the goods imported by M/s. Rahul Enterprises was not available as the go....
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....,08,267/-. In view of the deliberate mis-declaration and evasion of duty, they are liable for penalty under Section 114A of the Customs Act, 1962, in respect of this Bill of Entry. In respect of other bills/they are liable to a penalty under Section 112(a) of the Customs Act, 1962. Accordingly, I pass the following order. 5. Ld. Senior Counsel Shri G.L.Rawal appearing for the appellants submits that finding of the ld. Commissioner is totally misconceived and not in keeping with the directions given by the Tribunal. He points out that Revenue has not produced the evidence in the form of test results of the goods imported by Rahul Enterprises to show that the goods were one and the same evidence in the form of test results of the goods imported by Rahul Enterprises to show that the goods were one and the same with that of the goods imported by the appellants. The Commissioner had noted in the first paragraph the chemical test results of the appellant's product while the test result of the Rahul Enterprises product has been noted only as 'PVC' Cloth which cannot be considered as same as that of appellant's goods "Nylon Oxford PVC Coated Fabrics". The second point raised by appellants....
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....ess of both the goods to be the same. Ld. Sr. Counsel points out that even the ld. Commissioner has noted in his order that even if the goods are not identical, the similarity of these two consignments cannot be questioned. Ld. Counsel submits that when ld. Commissioner himself is doubtful about the goods being 'identical', he cannot quote the thickness of goods which was 0.37 mm as per the test results to be same as that of description given in the Bill of Entry of Rahul Enterprises where the thickness of goods was 0.4 mm and they are not conforming to the definition of "similar goods". 9. On a careful consideration of the submissions made by both sides, we find lot of force in the submissions made by ld. Sr. Counsel. The law on this aspect has been crystalised and clearly laid down by the Apex Court in the latest judgment rendered in the case of Eicher Tractors Ltd. The latest judgment of Mirah Exports as well as Basant Industries v. Additional Collector - 1996 (81) E.L.T. 195 (S.C.) and clearly applies to the facts of this case. In the case of Basant Industries, the Apex Court had stated that mere comparison of invoices received by the importer with the invoice of import of sam....