Posted On by &filed under Judgements.


Customs, Excise and Gold Tribunal – Mumbai
Sunny Enterprises vs Commissioner Of Customs on 6 November, 2003
Equivalent citations: 2004 (175) ELT 420 Tri Mumbai
Bench: S T Gowri, K Kumar


ORDER

Gowri Shankar, Member (T)

1. Sunny enterprises, the respondent to this appeal by the Commissioner, imported resins of Chinese origin at a declared price of US$ 1496 cif per ton of the value. The Assistant Commissioner was of the view that the value was too low and after considering the cause shown by the importer, since he found that quotation offer dated 16.3.1998 of Capital Glass International Ltd, Himgiang indicated the price of $2560 per ton of such resins and there was a practice in Mumbai Custom House enhancing the value of $1730 per ton. He therefore was of the view that there was reasonable doubt justifying recourse to the determination of Rule 10(a) of the Valuation Rules. He therefore determined the price at $ 2300 per ton based upon the reported market price of the goods of $ 250 per kg and allowing various deductions on accounty of profit, expenses etc.

2. The importer appealed this order. The Commissioner (Appeals) relies upon quotation and offer of the Additional Commissioner was misplaced and that it was a practice in the Mumbai Custom House to clear similar goods at the provisional price of US$1730 per ton. He therefore ordered provisional assessment of the goods pending further verification/investigation. This order is against the order of the Commissioner (Appeals).

3. The ground in the appeal is that the Commissioner (Appeals), by applying Rule 10 (a) of the Valuation Rules should have upheld the price determined by the Additional Commissioner and ought not to have been considered fresh evidence submitted by the importer. It is also contended that the Commissioner (Appeals) has no authority to order provisional assessment.

4. The respondent is absent and unrepresented despite notice.

5. Without going into as to whether the Commissioner (Appeals) had the power to order provisional assessment or not, we do not think proper to uphold this order to ratify. The question before the Commissioner (Appeals) was the acceptability or otherwise of the value declared by the importer. He, in our view, ought to have come to a definite conclusion, one way or the other on this aspect. We do not find that the provision of Rule 10A justify the value determined by the Additional Commissioner. Rule 10A provides that when the proper officer has reason to doubt the truth or accuracy of the value declared, he may asked the importer to furnish further information or other evidence. If he still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of the goods cannot be accepted. The Commissioner (Appeals) has therefore required to determine whether the quotation offered by the Capital Glass International Ltd and the practice of the Mumbai Custom House constitute reasonable doubt for the assessing officer to doubt the value of the goods. Even assuming that it was the value that is to be determined would be in terms of Rule 5 onwards apply sequentially.

6. The appeal is accordingly allowed, the impugned order set aside and the matter remanded to the Commissioner (Appeals) for disposal of the appeal in accordance with law.


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