By TIOL News Service

NEW DELHI, JAN 08, 2014: THIS is a Revenue appeal against the order passed by the Commissioner (Appeals) vide which he has set aside enhancement of value of imported PU coated fabric.

The Commissioner(A) observed that the Revenue has not advanced any argument for rejecting the transaction value, which is required to be accepted in terms of Rule 4 of Customs Valuation Rules. He has further observed that no reasoning stands given by the original adjudicating authority for enhancement of the value;there is no contemporaneous import value available and no expert opinion or any import by another importer as is required for enhancement of the value. While arriving at this conclusion he relied upon the Supreme Court decision in Eicher Tractors Ltd. vs. CC (2002-TIOL-06-SC-CUS) .

In their appeal before the CESTAT, the Revenue referred to and relied upon some imports made at ICD, Tughalakhbad and at Nhavasheva.

The Member (J) observed that the said clearances are in respect of fabrics varying in thickness and there is nothing to show that the goods are identical in quality as also in respect of import of origin place or manufacturer etc. It was further noted that the guideline as contained in the Mumbai Customs House letter F.No.S/26-Misc-57/2005-1111 dated 27.3.2006 relied upon by the Revenue was dealt with by the Bench in an identical appeal of the Revenue in the case of CC, New Delhi vs. M/s. D. M. International and vide its Final Order No.C/A/114/12-Cus dated 30.3.2012 the Revenue appeal was rejected.

In fine, the Member(J) was of the view that the Revenue appeal is liable to be rejected.

However, the Member (T) observed that the Commissioner (Appeals) order is totally vague and with pre-determined mind and he had not referred to enhancement nor quantum of enhancement. Inasmuch as grounds of appeal of Revenue being meritorious deserved consideration.

The Member (T) held -

"15. In view of above, I am convinced that sufficient evidence exists on the basis of which enhancement of value has been made. Full details of thickness, details of Bill of entries of various ports and comparative prices have been given which clearly manifest that Revenue has rightly rejected the declared invoices value and have enhanced it based on specific NIDB Data. Further all these values have been accepted by the concerned importers without protest and duties have been discharged and deliveries have been taken. In view of clear facts, Commissioner (Appeal)'s order has no legs to stands and is not maintainable at all since that suffers from lack of examination of verifiable date of different ports. Respondent's case does not come within the fore of Hon'ble Supreme Court Judgment in the case of M/s Eicher Tractors Ltd. Reliance on Tribunal's earlier order in the case of M/s D.M. International dated 30.3.2012 does not justify rejection of Revenue's appeal as in the present case Revenue has taken all steps as required to justify the enhancements and Revenue has provided the rational basis for enhancement."

While arriving at this conclusion, the Member (T) relied upon the judgments cited by the Revenue representative in the case of M/s Varun Overseas (2011-TIOL-1398-CESTAT-DEL) and M/s Techno Marketing 2004 (164) ELT 113 (Tri.-Del) and after extracting the same concluded that it clearly comes out that enhancement of prices in eight B/Es are rightly made and are legally valid.

In view of the difference in opinion the matter was referred to the Third Member.

The Third Member (Technical) observed -

" 29. On going through facts of the case and the decisions relied upon Member Judicial and Member Technical, I find in respondent's own case the Revenue's appeal regarding enhancement of the assessable value by way of loading the declared value was rejected by this Tribunal as reported (2011-TIOL-1920-CESTAT-DEL). I am therefore of the view that enchantment of the value by the assessing authority is not sustainable in view of the reasons given by the Commissioner (Appeal) in the impugned order and accordingly the Order-in-Appeal passed by the Commissioner is sustainable."

Thus, he concurred with the findings given by Member (Judicial) that the appeal filed by Revenue has no basis.

In view of the Majority order, the Revenue appeal was rejected.

(See 2014-TIOL-39-CESTAT-DEL)