ORDER
S.L. Peeran, Member (J)
1. The appellant is aggrieved with Order-in-Original No. 10/05 dated 17.5.05 rejecting the transaction value of second hand six colour king web offset printing machines declared through BE 146100 dated 4.8.04. The goods have been confiscated and an option to redeem the same was given on payment of redemption fine of Rs 5,00,000/- and penalty of Rs 1,00,000/- It is the contention of the appellant that the transaction value of second hand machinery cannot be rejected in the absence of any contemporaneous import with regard to the import of the same goods at the same time and place. They have also produced the Chartered Engineers Certificate to support the age of the machinery to be less than 10 years. Their contention is that the action of the department in rejecting the transaction value of the second hand imported machinery and also rejecting the chartered engineers certificate dated 1.7.04 is not as per law. The department on the other hand got the chartered engineer appointed to value the goods and to state the age of the machinery. The chartered engineer appointed by the department enhanced the value to Rs 20,38,950 as against declared value of Rs 8,92,335/- and showed the age as more than 10 years. In terms of para 2.17 of Exim policy 2002-07 read with para 2.33 of Handbook of Procedures, the appellants were charged with non-production of valid licence and for mis-declaration for the year or manufacture. The authorities have confirmed the charge made against the appellants. The appellants contention is that in terms of the Apex Court judgement rendered in the case of Tolin Rubbers Pvt Ltd., , the valuation of second hand machinery has to be in terms of the transaction value which can not be rejected Learned consultant also submitted that the Apex Court has confirmed the Tribunal’s ruling rendered in the case of Anish Kumar Spinning Mills Vs Commissioner of Customs, Tuticorin as reported in Vol 182 A 12. The Tribunal in the said case as has upheld the invoice value and the valuation as per foreign suppliers chartered engineer’s certificate. Similar orders rendered by the Tribunal in the case of Ruby Mills Ltd., which has been confirmed by the Apex Court wherein also the transaction value was accepted in respect of second hand machinery. Learned Consultant also submitted that the foreign chartered engineer had clearly opined after due examination of the goods that the age of the second hand machinery is less than 10 years and the local chartered engineer’s certificate is not based on any evidence and is not acceptable. His enhancement of the value is also not based on any evidence and department has erred in accepting the age and the value given by the local chartered engineer which is not as per law. Learned SDR defended the order and contended that the authorities were justified in rejecting the invoice value and there are certain Tribunal rulings as in the case of Venus Insulation products Mfg Co Vs CCE which upheld the rejection of invoice value.
2. On a careful consideration and on examination of SDR’s plea, we notice that the rejection of value was with regard to inputs as in the case of Venus Insulation Products Mfg Co., (supra) and was not in respect of second hand machinery. There were other factors which were gone into for rejecting the invoice value. The Apex Court in the case of Tollin rubber Pvt ltd., (supra) has clearly held that transaction value in respect of second hand machinery cannot be rejected. In the present case, the authorities have taken a local chartered engineer’s certificate to enhance the value and the age of the goods. The appellants have produced foreign chartered engineer’s certificate dated 12.7.04. On a clear examination of the goods he has opined that the age of the machinery is less than 10 years and has also given the market value at US$ 18,000/-. There is no reason to enhance the market value and to reject the chartered engineer’s certificate produced by the assessee. The plea of the appellants is in terms of the Supreme Court judgement rendered in the case of Tollin Rubbers Pvt Ltd., (supra) and the Tribunals ruling rendered in the case of Ruby Mills Ltd., and Anish Kumar Spinning Mills (supra). In the light of these judgements, the impugned order is not sustainable. The same is set aside by allowing the appeal with consequential relief if any.