Sedna Impex India P Ltd Vs C.C.-Mundra (CESTAT Ahmedabad)
CESTAT Ahmedabad held that enhancement of value merely on the basis of NIDB (National Import Database) data without any other independent evidence is not acceptable.
Facts- Appellants filed various Bill of entry seeking clearances of 100% Non-Textured Polyester Lining Falling under chapter CTH 54076190 and Mix Lot of 100% Polyester Knitted Fabrics falling under CTH 60053200 of the Customs Tariff Act, 1975, originating from China and declaring the price.
The original adjudicating authority considering the representation through CPGRAM issued order and rejected the value declared by the appellant and re-determined the value of goods as per NIDB data under Rules of Customs Valuation Rules, 2007 and assessed bills of entry. Therefore, Appellants challenged the assessment before the Commissioner (Appeals) and has also claimed the benefit of Notification No. 30/2004-CE dtd. 19.07.2014 as amended by Notification No. 34/2015-CE dtd. 17.07.2015. However Ld.
Commissioner (Appeals) vide impugned orders-in-appeal has upheld the order of original adjudication authority. Aggrieved by the said Orders–In-Appeal the Appellants have filed theses appeals.
Conclusion- Held that the adjudicating authority enhanced the value as the declared value appears to be low compared to value available in NIDB data, otherwise, there is no material available. The Tribunal consistently observed that the declared value cannot be enhanced merely on the basis of NIDB data. NIDB data was held to be insuffient, in the absence of clarity about various parameters. List of such decisions is unending and it is sufficient to say that NIDB data has been held to be insufficient for enhancement of value, in the absence of any other independent evidence. Admittedly in the present cases, there is no such evidence produced by the Revenue except reference to the NIDB data. In view of the discussions above, we hold that in the present case, the enhancement of value on the basis of NIDB data cannot be accepted.
Held that it is settled that the appellants are entitled for the exemption from payment of CVD under notification No. 30/2004-CE dtd. 09.07.2004.
FULL TEXT OF THE CESTAT ALLAHABAD ORDER
The issue involved in all these appeals are identical. Therefore all these appeals are taken up together for disposal.
2. Brief facts of the case are that appellants filed various Bill of entry seeking clearances of 100% Non-Textured Polyester Lining Falling under chapter CTH 54076190 and Mix Lot of 100% Polyester Knitted Fabrics falling under CTH 60053200 of the Customs Tariff Act, 1975, originating from China and declaring the price. The original adjudicating authority considering the representation through CPGRAM issued order and rejected the value declared by the appellant and re-determined the value of goods as per NIDB data under Rules of Customs Valuation Rules, 2007 and assessed bills of entry. Therefore, Appellants challenged the assessment before the Commissioner (Appeals) and has also claimed the benefit of Notification No. 30/2004-CE dtd. 19.07.2014 as amended by Notification No. 34/2015-CE dtd. 17.07.2015. However Ld. Commissioner (Appeals) vide impugned orders-in-appeal has upheld the order of original adjudication authority. Aggrieved by the said Orders –In-Appeal the Appellants have filed theses appeals.
3. Shri Jatin Mahajan, Learned Advocate appearing on behalf of the appellant submits that the lower authorities have erred in invoking the provisions of Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 which is precursor for rejection of declared value. Ld. Authorities have failed to give consideration to the contracts registered by the appellant prior to causing import of the goods under consideration. NIDB data cannot be the sole ground for rejection of the transaction value without any evidence to prove that the goods under import have been undervalued.
3.1 Without prejudice to the conditions that NIDB data cannot be applied in the present case, he submits that both the authorities have grossly erred in invoking the provisions of Explanation (1)(iii)(a) to Rule 12(2) of the Rules inasmuch as the pre-condition regarding comparable commercial transaction prescribed therein is not fulfilled.
3.2 He also submits that the Ld. Adjudicating authority has itself held that since no data of contemporaneous import of identical goods was available, recourse to Rule 5 was justified holding that the value of similar comparable goods with similar characteristic, components and application was taken as reference for re-determining the value of the imported goods by the proper officer. This finding of the Ld. Commissioner (Appeals) is not supported by any evidence. It is settled law that the declared price of goods cannot be rejected only on the basis of contemporaneous data and department needs to first ascertain para-meters of quality, quantity, characteristics of both the imports i.e contemporaneous import and import by the importer. In the present matter both the authority failed to do the same.
3.3 He further submits that Ld. Commissioner (Appeals) has wrongly held that the adjudicating authority has correctly taken recourse to the value of similar goods which possess like characteristics and like component materials which enable them to perform the same function and they are commercially inter-changeable with the goods being valued having regard to the quality, reputation etc. However it is not mentioned anywhere either in the order-in-original or in the impugned order-in-appeal as to from where the original adjudicating authority as well as the Ld. Commissioner (Appeals) came to the conclusion that the imported goods and goods mentioned in the alleged data of contemporaneous import are similar in character and the same are commercially interchangeable with regard to the quality, reputation and they perform the same function. Hence in the present matter finding of both the adjudicating authority for applying Rule 5 is incorrect.
3.4 He also argued that in the present matter goods imported by the appellant were not fabric in running length, but they were Mixed Lot of Fabrics having assorted colors and weight, the department had no jurisdiction to reject transaction value of such goods only because fresh or prime quality polyester kintted fabrics in running length were having a higher price. The action of department and orders in rejecting transaction value of the goods imported by the appellant on such ex-facie erroneous basis is therefore liable to be set aside.
3.5 He further submits that unless the price actually paid for the particular transaction falls within the exemption in Rule 3(2), the customs authorities are bound to assess the duty on the transaction value. Both Section 14(1) and Rule 3 provide that the price paid by an importer to the vendor in the ordinary course of commerce shall be taken on the value in the absence of any special circumstance indicated in Section 14(1) and particularized in Rule 3(2).
3.6 He also argued that in the present matter Ld. Commissioner failed to appreciate that the benefit of Exemption Notification No. 34/2015-CE dtd. 17.07.2015.was available on goods in question and the adjudicating authority has not dealt with the issue at all despite specific plea of the appellant .Therefore CVD charged and collected in the Bills of Entry is without the authority of law. He placed reliance on the following decisions.
