TaxTMI 
TaxTMI 
2005 (3) TMI 225
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....lants and Smt. Shobha L. Chary, the learned JCDR for Revenue. 3. The appellants, M/s. Gemplus India Private Ltd. (GIPL in short), imported sim cards from their holding company M/s. Gem Plus SA and other related units. The fact that the appellants and the foreign suppliers are related is not in dispute. In view of the above fact, Rule 4(3) of the Customs Valuation Rules, 1988 had to be adopted. Revenue conducted investigations on the basis of the information supplied by the appellants and came to the conclusion that the relationship between the appellant and the foreign suppliers has actually influenced the facts. The original authority came to the conclusion that the variation in price offered to the appellant and other independent buyers in India ranges from 21% to 51%. On the basis of the data supplied by the appellants themselves, the original authority arrived at a figure of 39.67% as the average difference in price. This average is wrongly mentioned in para 6 as 35.67%. But in para 11 of the OIO, the correct figure of 39.67% has been indicated. The Adjudicating Authority rejected the transaction value and proposed to load the invoice value by 50% of the average actual diffe....
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....he lower authority should have taken into account the total imports made by the appellants in a financial year and compare it with the imports made by unrelated buyers in India during the same financial year to arrive at the quantity level of imports. (v) During the financial year 2000-2001, the appellants have imported Sim card Gemex 8K to the tune of 10,02,145 nos. valued at Rs. 14.29 crores approximately. If other types of cards are also taken into account, the number would be far higher. However, the lower authority had not taken into consideration this fact to arrive at the quantity level of imports. (vi) From the above, it is very clear that the lower authority has not followed correctly Rule 5 of the Valuation Rules in re-determining the assessable value. The learned Advocate relied on the following judgments : (a) Elite Packaging Industries v. CCE - 1992 (60) E.L.T. 311 (T) (b) Punjab Niryat Ayat Pvt. Ltd. v. CC - 1992 (58) E.L.T. 340 (T) (c) Polyvinyl Industrial Corpn. v. CC - 1994 (74) E.L.T. 426 (T) (d) Eicher Tractors Ltd. v. CC, Mumbai - 2000 (122) E.L.T. 321 (S.C.) (vii) The transaction value of the import....
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....st the market conditions prevailing in India by importing sim/smart cards software and hardware from GTA and its subsidies. For the above purpose, the appellant entered into a Product Supply Agreement with GTA. This is the background for the import of sim cards by the appellant. In this appeal, we are mainly concerned with valuation of the imported goods. The following is the relevant clause regarding the price of the imported goods. 3. The price at which the products, cards and services are imported by GIPL from GTA shall be as mutually agreed upon by the parties hereto, depending upon the prevailing market driven prices, demand by customers etc. 4. The price as finalized between the parties and as specified by GTA shall be paid by GIPL within 60 days (or as when it is required without any interest for the delayed period of receipt of the goods and invoice raised by GTA on GIPL for a particular consignment. 7. From the above, it is very clear that the price of the imported items is mutually agreed between the supplier and the importer depending upon the prevailing market driven prices, demand by customers. In their letter to the Deputy Commissioner (Special Va....
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....ty of imports. Moreover, in order to apply Rule 5 of the Customs Valuation Rules, we have to take into account the commercial level and the quantity of goods being valued. As rightly contended by the appellant, the transaction value of the imports made by them as traders/dealers cannot be compared with the transaction value of the imports made by the actual users. In other words, Commercial levels are not comparable. The Tribunal, in the case of Atco Industries Ltd. v. CC - 1992 (57) E.L.T. 654 (T), held that the transaction value in respect of 24 sets of balances cannot be compared with the invoices pertaining to only one set in applying Rule 5. In the case of Elite Packaging Industries v. CCE - 1992 (60) E.L.T. 311 (T), the Hon'ble Tribunal was concerned with imports by the appellants of 500 MTs. The import price was sought to be confirmed by the department with another import made by yet another importer in respect of only 34 MTs. It was held that the department was wrong in having applied by similar goods test under Rule 6 read with Rule 5(1)(b). The Tribunal held that not only the quantities were different but even the grades were different and so similar goods test was no....