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Cus – Without any specific evidence of contemporaneous imports, the assertion of contemporaneous price is baseless: CESTAT

2019-TIOL-2497-CESTAT-AHM

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH, AHMEDABAD
REGIONAL BENCH
COURT NO. III

Customs Appeal No. 11787 of 2016

Arising out of Order-in-Appeal No OIA-MUN-CUSTM-000-APP-191-16-17, Dated: 28.06.2016
Passed by Commissioner (Appeal) of Central Excise & ST, Mundra

Date of Hearing: 08.07.2019
Date of Decision: 08.08.2019

COMMISSIONER OF CUSTOMS
MUNDRA, OFFICE OF THE PRINCIPLE COMMISSIONERATE OF CUSTOMS
PORT USER BULD. CUSTOM HOUSE MUNDRA, MUNDRA, KUTCH
GUJARAT-370421

Vs

ARTEX TEXTILE PVT LTD
OFFICE NO. 1014, 10TH FLOOR, D-MALL
NETAJI SUBHASH PLACE PITAMPURA DELHI

Appellant Rep by: Shri Sameer Chitkara, AC Adv.
Respondent Rep by: Shri Sanket Gupta, Adv.

CORAM: Ramesh Nair, Member (J)
Raju, Member (T)

Cus – The assessee had imported Polyester Knitted Fabrics (mixed lot) declaring the value as Rs. 121/- per Kg. – The said value was rejected on the strength of contemporary imports of the said goods which was around Rs. 148/- per Kg. and the value was revised to Rs. 148/- per Kg as per NDDB data – The O-I-O was passed on the basis of assertion that they were on contemporaneous imports of Rs. 148 per Kg. – The O-I-O shows that there is no mention of name of importer or number of Bills of Entry on the basis of which said observation has been made – It is seen that the Apex Court in the case of Sanjivani Non-Ferrous Trading Pvt. Limited 2018-TIOL-447-SC-CUS affirmed the decision of the Tribunal – Thus, without any specific evidence of contemporaneous imports the assertion of contemporaneous price is baseless – The O-I-O does not disclose the documents, the data, quantity, price etc. of the contemporaneous imports – In these circumstances, following the decision of Apex Court, O-I-O was without any evidence – The Commissioner (A) has rightly set-aside the demand: CESTAT

Appeal dismissed

Case laws cited:

CCE & ST, Noida vs. Sanjivani Non-Ferrous Trading Pvt. Limited – 2018-TIOL-447-SC-CUS… Para 3

Anil Kumar Tiwari vs. CC, Tuticorin – 2016-TIOL-662-CESTAT-MAD… Para 5

CC, Mumbai vs. Multimetals Limited – 2002 (144) ELT 574 (Tri. Mum.)… Para 5

FINAL ORDER NO. A/11519/2019

Per: Raju:

This appeal has been filed by Revenue against the order of the Commissioner of Customs, Mundra.

2. Ld. Counsel for the respondent pointed out that they had imported Polyester Knitted Fabrics (mixed lot) declaring the value as Rs. 121/- per Kg. The said value was rejected on the strength of contemporary imports of the said goods which was around Rs. 148/- per Kg. The value was revised to Rs. 148/- per Kg as per NDDB data.

3. Ld. Counsel for the respondent argued that there was no ground for rejection of the declared value. He relied on the decision of Hon’ble Apex Court in the case of CCE & ST, Noida vs. Sanjivani Non-Ferrous Trading Pvt. Limited – (2019) 2 SCC 378 = 2018-TIOL-447-SC-CUS wherein the following has been observed:-

“14. In Commissioner of Customs vs. Prabhu Dayal Prem Chand, this Court was confronted with almost same kind of fact situation. On the basis of the information received subsequently from the London Metal Exchange (for short “LME”) to the effect that the price of the two metals viz, brass scrap and copper scrap, in LME as on the date of import was more than the price declared by the respondent, demanded additional duty amounting to Rs. 90,248/- and Rs. 1,94,035/- respectively, from the assessee on the said two bills of entry. This order was set aside by the Tribunal and appeals there against by the Customs were dismissed by this Court. The Court noted, while accepting the plea of the assessee, that they were not confronted with any contemporaneous material relied upon by the Revenue for enhancing the price declared by them in the bills of entry. It also noted the following remarks of the Tribunal: (Prabhu Dayal Prem Chand case, SCC OnLine CEGAT para 3)

“3. … In the present case as mentioned above, even though there is a reference to contemporaneous import in the order passed by the Deputy Commissioner no material regarding such import has been placed before us or made available by the appellant at any point of time. Therefore, assessment in this case has to be taken as having been made purely on the basis of LME Bulletin without any corroborative evidence of imports at or near that price which is not permissible under law. We, therefore, set aside the impugned order and allow the appeal.”

(emphasis supplied).

Dismissing the appeals, this Court observed as follows: (Prabhu Dayal Prem Chand case, SCC p. 537, para 8)

“8. … It is manifest from the afore-extracted order of the Tribunal that no details of any contemporaneous imports or any other material indicating the price notified by LME had either been referred to by the adjudicating officer in the adjudication order or such material was placed before the Tribunal at the time of hearing of the appeal. The learned counsel for the Revenue has not been able to controvert the said observations by the Tribunal. In that view of the matter no fault can be found with the order passed by the Tribunal setting aside the additional demand created against the assessee.”

4. He pointed out that order-in-original while holding that the contemporary imports are at Rs. 148/- per Kg. and there is no bill of entry or import details against the said claim of Rs. 148 per Kg. In these circumstances, rejection of declared value cannot be done as held by the Hon’ble Apex Court in the case of Sanjivani Non-Ferrous Trading Pvt. Limited (supra).

5. Ld. AR relied on the impugned order. He argued that the appellant had accepted the enhanced value though under protest, they had also waived issuance of show cause notice and personal hearings. He argued that once they have not produced necessary evidence in support and regarding difference of value. He argued that no evidence has been produced by the assessee. He relied on the Tribunal decision in the case ofAnil Kumar Tiwari vs. CC, Tuticorin – 2016 (344) ELT 1051 (Tri. Chennai) =2016-TIOL-662-CESTAT-MAD wherein in Para 10, following has been observed :-

“10. In the absence of any valid documents by the appellant it is evident that declared price of US $ 0.70 per mtr. is not a normal price and the same cannot be considered as transaction value. We find that adjudicating authority correctly determined the value under Rule 4(3) of CVR, 2007 and taken the lowest contemporaneous price of US $ 1.05 per mtr. instead of US $ 2.36/mtr. of contemporaneous import was available. Therefore, respectfully following the ratio of above two decisions, we find that rejection of declared price and enhancement of value from US $ 0.70 to US $ 1.05 per mtr. determined by the adjudicating authority is fully justified and liable to be upheld. Consequently, the confiscation of the seized goods under Section 111(m) and demand of differential duty of Rs. 69,61,352/- on the re-determined value under Section 28 of Customs Act is upheld.”

He argued that the said decision has been affirmed by the Hon’ble Apex Court as reported at 2003 (151) ELT A-309. He also relied on the decision of the Tribunal in the case of CC, Mumbai vs. Multimetals Limited – 2002 (144) ELT 574 (Tri. Mum.), wherein in Para 4, the following has been observed:-

“4. As we have noted, the importer had waived issue of written notice. The proportion that was placed before the Collector for adjudication is contained in a note dated 17-12-1993 of the appraising officer of the Central Intelligence Unit of the Custom House, countersigned by the Assistant Collector and Additional Collector. This note clearly proposed “adjudication on above grounds of mis-declaration, classification and valuation”, proposed penalty on the importer, after giving detailed submissions as to the method of valuation of the goods. The Collector has therefore erred, when he says that there was no dispute relating to the value.”

6. We have gone through the rival submissions. We find that order-inoriginal in the instant case was passed on the basis of assertion that they were on contemporaneous imports of Rs. 148 per Kg. The order-in-original shows that there is no mention of name of importer or number of Bills of Entry on the basis of which said observation has been made. It is seen that Hon’ble Apex Court in the case of Sanjivani Non-Ferrous Trading Pvt. Limited (supra) affirmed the decision of the Tribunal. In the said case, it observed as follows:-

“14. In Commissioner of Customs vs. Prabhu Dayal Prem Chand, this Court was confronted with almost same kind of fact situation. On the basis of the information received subsequently from the London Metal Exchange (for short “LME”) to the effect that the price of the two metals viz, brass scrap and copper scrap, in LME as on the date of import was more than the price declared by the respondent, demanded additional duty amounting to Rs. 90,248/- and Rs. 1,94,035/- respectively, from the assessee on the said two bills of entry. This order was set aside by the Tribunal and appeals there against by the Customs were dismissed by this Court. The Court noted, while accepting the plea of the assessee, that they were not confronted with any contemporaneous material relied upon by the Revenue for enhancing the price declared by them in the bills of entry. It also noted the following remarks of the Tribunal: (Prabhu Dayal Prem Chand case, SCC OnLine CEGAT para 3)

“3. … In the present case as mentioned above, even though there is a reference to contemporaneous import in the order passed by the Deputy Commissioner no material regarding such import has been placed before us or made available by the appellant at any point of time. Therefore, assessment in this case has to be taken as having been made purely on the basis of LME Bulletin without any corroborative evidence of imports at or near that price which is not permissible under law. We, therefore, set aside the impugned order and allow the appeal.”

(emphasis supplied).

Dismissing the appeals, this Court observed as follows: (Prabhu Dayal Prem Chand case, SCC p. 537, para 8)

“8. … It is manifest from the afore-extracted order of the Tribunal that no details of any contemporaneous imports or any other material indicating the price notified by LME had either been referred to by the adjudicating officer in the adjudication order or such material was placed before the Tribunal at the time of hearing of the appeal. The learned counsel for the Revenue has not been able to controvert the said observations by the Tribunal. In that view of the matter no fault can be found with the order passed by the Tribunal setting aside the additional demand created against the assessee.”

7. Thus, without any specific evidence of contemporaneous imports the assertion of contemporaneous price is baseless. The order-in-original does not disclose the documents, the data, quantity, price etc. of the contemporaneous imports. In these circumstances, following the decision of Hon’ble Apex Court, we hold that order-in-original was without any evidence. The Commissioner (Appeals) has rightly set-aside the demand. The appeal filed by the Revenue is therefore, dismissed.

(Pronounced in the open court 08.08.2019)

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