2004 (96) ECC 482 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

West Zonal Bench -- Mumbai

Shri Krishna Kumar, Member (J) and Shri C. Satapathy, Member (T)

Commissioner of Customs, Nhava Sheva

Versus

Vazir Polymers Limited

Appeal No. C/37/02

[Arising out of Order-in-Appeal No. 44/2001 APVL (JCH) dated 11.10.2001. passed by the Commissioner of Customs (Appeals), Mumbai]

Order No. A/347/WZB/2004/C-II, dt. 1.6.2004, Certified on 8.6.2004

Import

Assessment -- Evidence of contemporaneous imports, not taken into consideration by the Commissioner (A). The impugned order is set aside. Matter remanded to the Commissioner (Appeals) to take into account the cited case laws as well as the bills of entries relating to contemporaneous imports and pass a fresh speaking order after allowing a reasonable opportunity of hearing to both sides.

[Paras 2, 3, 4]

The appeal is allowed by way of remand

PRESENT :

Shri S. Singhal, DR for the appellant.

None for the respondent.

Cases Cited :

1. Punjab Processors Pvt. Ltd. v. CC, 2003 (157) ELT 625 (SC)............................ [Para 2]

2. Rajkumar Knitting Mills (P) Ltd. v. CC, Bombay, 1998 (60) ECC 254 (SC)........... [Para 2]

3. Ramchandra Art Silk Yarn v. Union of India, 2002 (139) ELT 540 (Guj.).............. [Para 2]

4. Sources India Impex Pvt. Ltd. v. CC, New Delhi, 2002 (140) ELT 229 (Tri. Del.)... [Para 3]

Per : Shri C. Satapathy

None appeared for the respondents. Heard Shri S. Singhal, learned DR for the Revenue. In this case, the respondents had declared the value of the impugned consignments of LLDPE/HDPE as US $ 225 per metric tonne. The Additional Commissioner of Customs who has passed the impugned Order-in-Original enhanced the value to US $ 352.35 for the purpose of assessment. The Commissioner (Appeals) has passed the impugned Order-in-Appeal setting aside the Order-in-Original mainly on the ground that the department has not provided evidence of contemporary import prices.

2. Shri S. Singhal, learned DR appearing for the department states that the Commissioner (Appeals) has erred in holding that the department has not provided evidence of contemporary import of higher prices inasmuch as in the cross objection filed by the department range of prices at which imports were noticed was clearly mentioned. He, however, admits that specific instances of contemporary imports were not provided but the same has since been made good by submitting copies of four bills of entries as listed in the appeal papers filed before the Tribunal. He also cites the decision of the Apex Court in the case of Punjab Processors Pvt. Ltd. v. CC, 2003 (157) ELT 625 (SC) in which it has been held that while assessing value of import, Customs authorities are not bound by the figure mentioned in the invoice and can rely on contemporaneous evidence to show that the invoice value is not the correct value. he also cites the decision of three judges Bench of the Apex Court in the case of Rajkumar Knitting Mills (P) Ltd. v. CC, Bombay, 1998 (60) ECC 254 (SC) : 1998 (98) ELT 292 (SC) upholding assessment on the basis of comparable price of other imports taking the relevant date of importation into account. He also draws our attention to the following observations of the hon'ble High Court of Gujarat in the case of Ramchandra Art Silk Yarn v. Union of India, 2002 (139) ELT 540 (Guj.):

"Since this Court is not directly concerned with the determination of value for assessment of the Customs duty which is a subject matter exclusively within the domain of Customs authority, it does not find necessary to go into that aspect in any further details, the provisions of the Act and the Rules are being examined by us only for the limited purpose of finding out whether the directions or guidelines issued in the impugned Standing Orders are in any manner contrary to the provisions of law and result in taking away power and discretion of the assessing authorities. It is enough for our purposes to state that in a given individual case, the authorities might find the 'transaction value' as not genuine or reflecting the real value of such goods comparable with the price of such goods when ordinarily sold or offered for sale at the same time and place in the course of import. It is not in all cases that the 'transaction value' is to be accepted by the Customs authorities as determinative of the value for Customs duty. If the transaction value is found to be ridiculously low or not acceptable on other relevant consideration such as parties being related, the enquiry with regard to international prices of such goods becomes relevant and sometimes necessary."

3. Shri Singhal argues that in the light of the aforesaid decisions of the Apex Court and Hon'ble High Court of Gujarat, the assessment done on the basis of prevailing market price as reflected in the reputed journal Platts on the relevant date after giving a discount of 40% for the floor sweeping was in order. He further states that in any case the assessed price is also supported by the evidence of contemporaneous imports which has since been provided by the department. He further states that in the case of Sources India Impex Pvt. Ltd. v. CC, New Delhi, 2002 (140) ELT 229 (Tri. Del.), the Tribunal has remanded the matter for fresh consideration with reference to price shown in the imports made during the relevant period.

4. After hearing the learned DR and perusal of the case records including cited case laws, we are of the view that the Commissioner (Appeals) did not have a chance to take into account the evidence of contemporary imports. Accordingly, we set aside the impugned Order-in-Appeal and remand the matter to the Commissioner (Appeals) to take into account the cited case laws as well as the bills of entries relating to contemporaneous imports and pass a fresh speaking order after allowing a reasonable opportunity of hearing to both sides. The appeal is allowed by way of remand.

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