2005 (98) ECC 61 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

East Regional Bench : Kolkata

Shri V.K. Jain, Member (T) and Shri M.P. Bohra, Member (J)

Pioneer Imex

Versus

Commissioner of Customs (Port), Kolkata

Appeal No. CDM-33/2004

[Arising out of Order-in-Original No. Kol/Cus/Port/01/2004 dated 13.1.2004 passed by Commr. of Customs (Port), Kolkata]

Order No. A-363/KOL/2004, dt. 11.6.2004, Certified on 23.6.2004

Valuation (Customs)

Transaction value -- Import -- Plastic Body -- Plastic Lens Camera -- In the absence of contemporaneous evidence of similar quantity and same type, the Commissioner ought to have accepted the transacted price of the goods. No concrete evidence has been produced by the Revenue to reject the transactional value -- Sec. 14 of Customs Act r/w Rule 10A of Customs Valuation Rules, 1988.

Appeal allowed

PRESENT :

S/Shri R.K. Chowdhury and B.N. Pal, Advs. for the appellant.

Shri J.R. Madhiam, JDR for the respondent.

Cases Cited :

1. Basant Industries v. Addl.˙Collector, 1996 (81) ELT 195 (SC)............................ [Para 8]

2. Commr. of Customs, Kolkata v. Chem Crown (I) Ltd., 1998 (60) ECC 327 (Tri).... [Para 8]

3. Eicher Tractors Ltd. v. Commr. of Customs, Mumbai, 2000 (72) ECC 673 (SC)... [Para 4]

4. Enfield Industries Ltd. v. Commr. of Customs (Port), Kolkata vide Order No. S-17/A-20/Kol/2003 dated 20.1.2004.............................................................................................................. [Paras 4, 7]

5. Kishan Das & Sons v. Commissioner of Customs, Mumbai, 1999 (112) ELT 227 (Tri) [Para 8]

6. Mirah Exports Pvt. Ltd. v. Collector of Customs, 1998 (59) ECC 219 (SC)..... [Paras 4, 8]

7. Virat Enterprises v. Commr. of Central Excise, Chennai, 2001 (132) ELT 691 (Tri.-Chen) [Para 8]

Per : M.P. Bohra

This appeal has been filed against the Order-in-Original passed by the Commissioner of Customs (Port), Kolkata on 13th January, 2004.

2. Brief facts of the case are that the appellant is engaged in the business of import and during course of business of 2nd July, 2002, he entered into an agreement with Galaxy Enterprise, Hongkong, for import of plastic body, plastic lens camera at a unit price U.S.$ .41. Pursuant to the said agreement, Galaxy Enterprise of Hongkong despatched the consignment of plastic body, plastic lens camera packed in 750 cartons and forwarded the Bill of Landing, Insurance Policy, Invoice, Packing List and Certificate of Origin. On 24th July, 2002, the said consignment arrived at Kolkata Port. The Bill of Entry was duly assessed by the Customs Authorities and the goods were examined by the Customs Authorities on 13th August, 2002 and the same were found to be corresponding to the declaration made by the appellant in the said Bill of Entry. On specific intelligence that a consignment of cameras were being cleared by one M/s Pioneer Impex, 15/95, Beadonpura, Gurdwara Road, New Delhi-5, by gross misdeclaration of description and value in connivance with the CHA, M/s G.D. Traders, in order to evade Customs duty. The consignment declared to contain 30000 pcs. of plastic body, plastic lens cameras of Chinese origin. It was intercepted by the Officers of the Directorate of Revenue Intelligence, Kolkata at the Container Freight Station, Kolkata on 14.8.2002 and the consignment was detained. A show-cause notice was issued. The statement of Rajkumar Agarwal, proprietor of the importing firm was recorded. The Commissioner of Customs (Port), Kolkata, rejected the transaction value under Rule 10A of the Customs Valuation Rules, 1988 read with the Section 14 of the Customs Act, 1962 and directed to re-determine the value of the goods at the rate of U.S.$ 1.5 per piece CIF in terms of Rule 8 read with Rule 6 of the Customs Valuation Rules, 1988 and to take up RSP at the rate of Rs. 257 per piece. He also ordered to pay differential duty amount of Rs. 11,57,209 and to pay interest on the same and imposed a penalty of Rs. 11,57,209 under the Customs Act. He further directed to encash the bank guarantee of Rs. 10 lakhs immediately towards apportionment of part of the duty liability with direction to pay the balance duty amount and interest. The appellant has filed this present appeal against this order.

3. We have heard Shri R.K. Choudhury, Ld. Advocate and Shri B.N. Pal, Ld. Advocate for the appellant and Shri J.R. Madhiam, Ld. JDR for the respondent and perused the records.

4. Ld. Advocates for the appellant submit that the transacted value of the appellant is rejected on the basis of his failure to produce the manufacturer's invoice. He submits that in the present case the import has been made from a trader and not from the manufacturer. The procurement of manufacturer's invoice by the importer from the overseas trader is not under the control of the importer. The manufacturer's invoice is a privileged document of the supplier and is in exclusive control with the supplier. The importer cannot insist to supply the manufacturer's invoice. He submits that it is well settled that merely for failure to produce manufacturer's invoice, the transacted value cannot be rejected. He has relied upon an order passed by this Bench in the case of M/s Enfield Industries Ltd. v. Commr. of Customer (Port), Kolkata being Order No. S-17/A-20/Kol/2003 dated 20.1.2004. He also submits that ordinarily the transaction value is to be accepted. He also relies on the decision of the Hon'ble Supreme Court in the case of Eicher Tractors Ltd. v. Commr. of Customs, Mumbai, 2000 (72) ECC 673 (SC) : 2000 (41) RLT 621 (SC) and in the case of M/s Mirah Exports Pvt. Ltd. v. Collector of Customs, 1998 (59) ECC 219 (SC) : 1998 (98) ELT 3 (SC). He further submits that the Commissioner has sought to compare bulk imports of the appellant with small imports of other importer for the purposes of rejection of the transacted value. That too in the absence of test report or another cogent evidence to show identical and ignoring the fact that the purported contemporaneous import was the cameras with ophthalmic glass lens and not of the cameras with plastic lenses imported by the appellant. He submits that the price of plastic body cameras with plastic lens is always much less than the cameras with glass lens. He submits that law is well settled that the transacted value cannot be rejected routinely and bulk import cannot be compared with smaller import. In respect of mis-declaration, he submits that the Commissioner has not accepted the contention of the Department in Order-in-Original and he had proceeded with the averment that it is an admitted position that the item imported by the appellants is plastic body with plastic lens cameras. In other words, he submits that the declaration of the cameras and the particulars thereof, has been accepted by the Commissioner under the impugned order. He, therefore, submits that the appeal may kindly be accepted and the order of the Commissioner be set aside.

5. In reply to the above contention of the Ld. Advocate of the appellant, Ld. JDR, Shri J.R. Madhiam, submits that the Commissioner has rightly rejected the transaction value. He has further supported the order-in-original passed by the Commissioner. He submits that the appeal may kindly be rejected.

6. In the present case, transaction value has been rejected on two counts. Firstly, the importer could not be able to produce the manufacturer's invoice and secondly, the price was fixed on the basis of contemporaneous import made by the other firms during this period.

7. Insofar as the submission of the manufacturer's invoice is concerned, it is privileged document of the supplier and it depends on the sweet will of the supplier to supply the manufacturer's invoice. In the present case, the cameras were imported from a trader from Hongkong whereas the cameras were manufactured in China. The manufacturer's invoice will reveal his margin of profit of a trader and no trader would like to disclose the margin of profit to anyone. There is no dispute about the transaction value and the Commissioner could not reject the same on flimsy ground. The same view has been expressed by this Tribunal in the Case of Enfield Industries Ltd. v. Commr. of Customs (Port), Kolkata vide Order No. S-17/A-20/Kol/2003 dated 20.1.2004.

8. For the purposes of proof of charge of under-valuation, the Department is required to produce the evidence of contemporaneous import which should be in the nature of the same goods and the same quantity, same type, time and place as laid down in the order rendered in the case of M/s Virat Enterprises v. Commr. of Central Excise, Chennai, 2001 (132) ELT 691 (Tri.-Chen). In the present case, the Commissioner has relied upon the evidence of contemporaneous import which was pertaining to identical/same description of the goods imported on 18.10.2002 subsequent to the import made by the appellant. The description of the goods were different. The Commissioner in his order, has mentioned that the goods are identical/same. It shows that the Commissioner himself was not sure about the description of the goods which was compared. So far the price of the goods is concerned, it varies on the basis of quantity and can be negotiated on the basis of quantity. There may be a difference in price of the same article supplied in bulk quantity in comparison to another purchasers of small quantity. Same principle has been laid down by the Apex Court in Basant Industries v. Addl. Collector, 1996 (81) ELT 195 (SC). In the present case, 90,000 pcs. of cameras were imported whereas in the case of M/s Universal Impex, 25,000 pcs. of cameras were imported. In the present case, the samples were taken for test but the test report had not been produced. In such circumstances, it was incumbent upon the Commissioner to accept the invoice price as held by the Hon'ble Apex Court in the case of M/s. Mirah Exports Pvt. Ltd. v. Collector of Customs, 1998 (59) ECC 219 (SC) : 1998 (98) ELT 3 (SC) and as also the Tribunal in the cases of M/s. Kishan Das & Sons v. Commissioner of Customs, Mumbai, 1999 (112) ELT 227 (Tri) & Commr. of Customs, Kolkata v. Chem Crown (I) Ltd., 1998 (60) ECC 327 (Tri) : 1998 (100) ELT 126 (Tri). In the absence of contemporaneous evidence of similar quantity and same type, the Commissioner ought to have accepted the transacted price of the goods as laid down in Virat Enterprises v. Commr. of Central Excise, Chennai, 2001 (132) ELT 691 (Tri.-Chen).

9. We find that in the instant case, no concrete evidence has been produced by the Revenue to reject the transactional value. So far the declaration of cameras and particulars thereof, is concerned, it has been impliedly accepted by the Commissioner (Appeals) in the impugned order. In view of the above, the appeal deserves to be accepted.

10. Consequently, we allow the appeal with consequential relief to the appellant.

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