2004 (97) ECC 556 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(A)

Shri V.K. Agrawal, Member (T) and Shri P.S. Bajaj, Member (J)

Commissioner of Customs, Amritsar

Versus

Supreme Woollen Mills

Appeals No. C/298-300/2004-NB(A)

[Arising out of Order-in-Appeal No. CC(A)/CHD/12 to 16/DELHI-I/2004 dated 21.1.2004 passed by Commissioner of Customs (Appeals), New Delhi]

Final Order No. 845 to 847/2004-NB(A), dt. 6.8.04,
Certified on 24.8.2004

Assessable Value

Enhancement -- The discrepancies pointed out by the Commissioner (Appeals) in the impugned order between the goods in question and the goods imported under Bills of Entry relied upon by the Revenue for enhancing the assessable value has not been satisfactorily controverted by the Revenue at all. The respondents had imported acrylic tow of 3.3 denier from Germany and acrylic tow of 2.2 denier from U.K. The Bills of entry relied upon by the Revenue is in respect of acrylic tow of Bulgarian origin and are in respect of acrylic tow of 3.3 denier. These differences itself are sufficient for not sustaining any enhancement in assessable value ordered by the Assistant Commissioner. The quantity imported by the respondents is much more than the quantity imported under the Bill of Entry relied upon by the Department. Moreover, there is no comparable price in respect of acrylic tow of 2.2 denier. The price available for acrylic tow of 3.3 denier cannot be made applicable to acrylic tow of 2.2 denier. No reason to interfere with the impugned order.

Appeals are rejected

PRESENT :

Shri Krishna S. Mishra, SDR for the appellant.

Shri Hari Shankar, Advocate for the respondent.

Per : V.K. Agrawal

Revenue has filed three appeals against common Order-in-Appeal No. 12-16/2004 dated 21.1.2004 by which the Commissioner (Appeals) has set aside the enhancement of the assessable value of goods imported by M/s. Supreme Woollen Mills.

2. Mr. Krishna Mishra, learned Senior Departmental Representative submitted that the respondents had imported acrylic tow and acrylic fibre of various denier under five Bills of Entry during the period November 2000 to September 2001; that the respondents themselves had declared different prices for acrylic tow of the same denier; that the Assistant Commissioner while assessing the Bills of Entry has enhanced the price at the rate of 1.33 US $ per kg. for both acrylic tow and acrylic fibre irrespective of the denier; that the respondents cleared the goods after paying the duty under protest; that they had also requested for issue of Adjudication order which was not passed by the Assistant Commissioner; that on Appeal filed by the respondents the Commissioner (Appeals) has observed in the impugned order that the Assessing Officer had not followed the procedure laid down in Rule 10A of the Customs Valuation Rules and no show cause notice was given intimating the ground for doubting the truth and accuracy of the value declared in relation to the goods imported; that Commissioner also observed that no opportunity was given to the respondents of being heard before rejecting the declared value. Learned Senior Departmental Representative, further, submitted that this rejection of declared value was not in accordance with the statutory provisions of law; that in view of this, the matters may be remanded to the Adjudicating Authority for observing the procedure and for passing the Adjudication order after observing the principles of natural justice.

3. Countering the argument Shri C. Hari Shanker, learned Advocate, submitted that on inquiry by the Commissioner (Appeals), the Adjudicating Authority had reported that the value had been enhanced on the basis of two Bills of Entry dated 13.9.2000 and 19.9.2000 under which the acrylic tow of Bulgarian origin of 3.0 denier and 3.3 denier had been imported at the rate of US $ 1.34 and 1.36 per kg.; that the Commissioner (Appeals) had set aside enhancement of the assessable value as he found following discrepancy in evidence relied upon by the Department.

(1) The country of origin is different.

(2) The denierage of acrylic fibre/tow is different.

(3) There is no evidence that the goods had been imported under a contract.

(4) The difference in unit price in at least two Bills of Entry is less than 10% from the value relied upon; and

(5) The quantity is different.

3.2 The Commissioner (Appeals) has given specific finding that goods with different technical characteristics (denierage), with country of origin and imported in different quantities under contract cannot be held comparable with goods which do not share these characteristics. The learned Advocate contended that the Department has not contradicted these findings at all as they have merely mentioned in its grounds of Appeal that the goods are not technically different with one another and they share common characteristics and similar nature; that in view of this, the order is proper and legal and there is no necessity for remanding the matter to the jurisdictional Adjudicating Authority.

4. We have considered the submissions of both the sides. The learned Advocate for the respondents has rightly contended that the discrepancies pointed out by the Commissioner (Appeals) in the impugned order between the goods in question and the goods imported under Bills of Entry relied upon by the Revenue for enhancing the assessable value has not been satisfactorily controverted by the Revenue at all. The respondents had imported acrylic tow of 3.3 denier from Germany and acrylic tow of 2.2 denier from U.K. The Bills of entry relied upon by the Revenue is in respect of acrylic tow of Bulgarian origin and are in respect of acrylic tow of 3.3 denier. These differences itself are sufficient for not sustaining any enhancement in assessable value ordered by the Assistant Commissioner. We also observe that the quantity imported by the respondents is much more than the quantity imported under the Bill of Entry relied upon by the Department. Moreover, there is no comparable price in respect of acrylic tow of 2.2 denier. Certainly the price available for acrylic tow of 3.3 denier cannot be made applicable to acrylic tow of 2.2 denier. We, therefore, find no reason to interfere with the impugned order and therefore, reject the appeals filed by the Revenue.

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