M/S. Mars Plastic & Polymers Pvt. ... vs Commissioner Of Customs, Ahmedabad

(Arising out of OIA-54/2008-AHD/CUS/COMMR-A-/AHD dated 27.05.2008, passed by Commissioner of Customs (Appeals), Ahmedabad)

M/s. Mars Plastic & Polymers Pvt. Limited : Appellant (s)

VERSUS

Commissioner of Customs, Ahmedabad : Respondent (s)

Represented by :

For Appellant (s) : Shri Paritosh Gupta, Advocate For Respondent (s) : Shri T.K. Sikdar, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

Date of Hearing / Decision : 08.10.2015

ORDER No. A/11909/2015 Dated 08.10.2015

Per : Mr. P.K. Das;

The relevant facts of the case, in brief, are that the appellant imported Ceramic tiles classifiable under Customs Heading No. 69081090 of the Customs Tariff Act. They filed 17 Bills of Entry during the period from January 2005 to February 2006, out of which 13 Bills of Entry had been assessed provisionally as the appellant had not submitted original copy of the contract and duly attested certificate of origin as per Bangkok Agreement and invoice price appeared to be lower than the contemporaneous imported data. The other 4 Bills of Entry of the similar goods were imported by the appellant and the goods were cleared after assessment to loaded value which was accepted by the appellant. Show Cause Notices dated 26.10.2006 was issued for finalisation of the assessment on 13 Bills of Entry. The adjudicating authority finalised the assessment of 13 Bills of Entry at the same rate as in the case of finally assessed 4 Bills of Entry and directed the appellant to pay differential duty of Rs. 16,51,605/-. By the impugned order, Commissioner (Appeals) rejected the appeal filed by the appellant.

2. The learned Advocate appearing on behalf of the appellant submits that non-filing of appeal in similar cases for the earlier 4 Bills of Entry would not bar them to file appeal in other Bills of Entry. He relied upon the decision of the Hon'ble Supreme Court in the case of C.K. Gangadharan vs. Commissioner of Income Tax, Cochin  2008 (228) ELT 497 (SC). He further submits that the appellant produced the contract in respect of present 13 Bills of Entry. It is submitted that burden of proving the under valuation lies on department. He also relied upon the decision of the Tribunal in the case of Aryan Electronics vs. Commissioner of Customs, New Delhi-IV  2004 (177) ELT 908 (Tri. Del.). He further submits that the adjudicating authority wrongly rejected the transaction value in respect of 13 Bills of Entry under Rule 4 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. He submits that both the authorities below failed to appreciate that the contract produced by the appellant, which cannot be discarded in arbitrary manner.

3. Learned Authorised Representative on behalf of the Revenue reiterates the findings of the Commissioner (Appeals). He drew attention of the Bench to the relevant portion of the adjudication order. He submits that the adjudicating authority had examined the contract, which has no relation with the present imported goods. So, the department rightly taken the contemporaneous price as available in the earlier 4 Bills of Entry, which are accepted by the appellant.

4. After hearing both sides and on perusal of the records, we find that the adjudicating authority finalised the assessment in respect of 13 Bills of Entry at the same rate as in the case of finally assessed 4 Bills of Entry No. 763/ 20.01.2006, 789/ 07.02.2006, 824/ 23.02.2006 and 825/ 24.02.2006 and directed to pay the differential duty of Rs. 16,51,605/-. The present appeal relates to the finalisation of the assessment of 13 Bills of Entry during the period from January 2005 to February 2006. The assessing officer assessed the said 4 Bills of Entry after loading the value as per contemporaneous import data (NIDB Data) and the same was accepted by the appellant and clearance was affected on payment of duty. In the present appeal, the appellant produced contract. The adjudicating authority observed that no date has been mentioned on the contract nor any period of validity has been mentioned. The invoices are totally bereft of any mention of contract number. It is significant to note that they have imported only 113x20 containers of Ceramic tiles from supplier but, as per contract they are supposed to import 60x20 containers per month. The contract does not indicate the Port of import for the consignment. The rate in the contract would not show whether it is FOB/ CIF basis. It is particularly noted that the certain size of tiles imported by the appellant are not tallied with the contract. It is clearly evident that both the authorities below, after detail discussion, discarded the contract as produced by the appellant. This fact was not refuted by the appellant at any stage. Hence, the adjudicating authority rightly adopted the price of contemporaneous imports at / around the time of import of impugned goods at higher value, as evident from 4 Bills of Entry. Hence, we do not find any illegality in the order of the lower authorities.

5. The learned Advocate strongly relied upon the decision of the Hon'ble Supreme Court in the case of C.K. Gangadharan vs. Commissioner of Income Tax, Cochin (supra). In that case, the Hon'ble Supreme Court observed that merely because in some case the Revenue has not preferred appeal that does not operate as a bar for the Revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher Court when divergent views are expressed by the Tribunals or the High Courts. In the present case, the adjudicating authority after considering the evidences produced by the appellant had enhanced the value. It is not the case of the department that the appellant had not filed any appeal in respect of 4 Bills of Entry and therefore, they have enhanced the value. So, the said case law would not be applicable. In the case of Aryan Electronics vs. Commissioner of Customs, New Delhi-IV (supra), the Tribunal observed that burden of proving under valuation lies on department. In the present case, the department proceeded on the basis of contemporaneous import of the impugned goods at higher rates, as evident from 4 Bills of Entry at or around the time of import of impugned goods. So, the said case law has no relevancy in the present case. Rule 10A of the Valuation Rules provides that if the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the value of such imported goods cannot be determined under the Rule 4(1) of the Valuation Rules. In the present case, the proper officer doubted the declared value and asked the appellant to furnish documents. It is noted that the documents are not corroborative with the invoices and therefore, the said documents were discarded. Thereafter, the assessing officer adopted the loaded price in respect of other 4 Bills of Entry as contemporaneous price.

6. In view of the above discussion, we do not find any reason to interfere the impugned orders. Accordingly, the appeal filed by the appellant is rejected.

(Dictated and pronounced in the open Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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