ORDER
U.L. Bhat, J. (President)
1. The dispute in this appeal relates to one unit of second hand Strausak Hobbing Machine of 1982 manufacture. The appellants declared the value as Rs. 1,03,614/- (Sfrs. 10,000/-). The Assistant Collector did not accept the jnvoice value, but enhanced the value to Rs. 1,70,364/-. This order has been confirmed by the Collector (Appeals). The importers filed the present appeal.
2. Though the memorandum of appeal states that there was a contract for supply of three machines of the same kind and the confirmation letter of the Chartered Engineer’s certificate also refers to three machines, it is submitted on behalf of the appellants that only one of the three machines was imported and other machines were not imported. This answer was stated repeatedly in response to our repeated questions. We, therefore, proceed on the basis that only one machine was imported and the invoice value of that was shown as Sfrs. 10,000/-.
3. The Chartered Engineer’s certificate shows that the machine was manufactured in 1982 and the price of the new machine in the year of manufacture was Sfrs. 35,000/-. What the Assistant Collector did was to start with this price as the basic price of a new machine and deduct depreciation. Adopting this procedure, he arrived at the C&F value as Sfrs. 17,043.69.
4. Shri S.N. Khurana, Consultant, who appeared for the appellants places certain decisions of the Tribunal before us to contend that ordinarily transaction value should be accepted and it cannot be rejected in the absence of evidence of contemporaneous import. He also places reliance on the judgment of the Supreme Court in the case of Collector of Customs, Bombay v. Nippon Bearings (P) Ltd., 1996 (82) E.L.T. 3 (SC). In that case the Department objected to the observations of the Tribunal to the following effect:
“It is also equally settled that in the absence of evidence of contemporaneous import of like kind of goods at higher prices the invoice price should be the basis for the assessable value under Section 14.”
The order of the Supreme Court indicates that the Court looked into the impugned order of the Tribunal and found that the Tribunal had considered the material before it and accepted the invoice price to be the correct price. It was only in that context the quoted observations were made with the intention of making it clear that despite evidence of correctness of the invoice price being filed by the importer, to reject the invoice price, it would be necessary to produce the evidence of alleged higher price of the commodity imported by producing contemporaneous import documents showing higher price. We do not understand the decision as holding that the invoice price has to be accepted where evidence of contemporaneous import is not available. For example, if there is acceptable evidence to show that, as a matter of fact, the parties had agreed on a higher price and paid a higher price, that will displace the invoice price. In such an event, no contemporaneous import document is necessary to reject the invoice price. We understand the law to be that invoice price cannot be rejected on the basis of mere suspicion and without adequate material to show that it was less than the ordinary price in the international trade at the time and place of import.
5. After making submissions regarding valuation, it was contended that the impugned orders were vitiated in view of absence of show cause notice in the first instance. It is argued that the customs house raised a doubt about the value and duty was paid on the loaded value after the date of presentation of the bill of entry, and the copy of the order passed by the Assistant Collector was furnished only about a year later. We find that no ground was taken either before the Collector (Appeals) or in the present memorandum of appeal to the effect that, as a matter of fact, show cause notice had not been issued. Whether notice had been issued or not is a question of fact. It requires to be urged in the memorandum of appeal. In the absence of ground raised either before the Collector (Appeals) or before us in the memorandum of appeal, we do not think we should countenance it or we should admit such a new plea at this stage. In view of the circumstances mentioned, it appears, probable, that the importers would have waived show cause notice on account of their anxiety to clear the goods.
6. The appeal is dismissed.