Judgment:
1. This is an appeal filed by Revenue. None appeared on behalf of the Respondents. Further, it was fairly conceded by the Departmental Representative that the issue involved herein has already been considered and covered by decision of the Tribunal (Chennai Bench) as per Final Order No. 993-999/2001 dated 14.6.2001.
2. The issue centers around the aspect of under-valuation of the impugned goods by the assessee. The prices have been compared with the price list of local sole selling agent of M/s Asahi Glass Company in South India i.e. M/s P.K. Jaipee & Company and also with the invoice of M/s Swathi Enterprises of Madras who also import tinted Float Glass from M/s Asahi Glass Company. According to the Department on comparison, the under-valuation has been quantified by arriving at the value under Section 14 (1) of Customs Act, 1962 read with Rule 8 of Customs Valuation Rules, 1988. The value arrived at was Rs. 14,57,351 whereas the value declared by the assessee was Rs. 8,66,113.84, thus resulting in undervaluation of Rs. 5,91,238. Accordingly the Show Cause Notice was issued demanding the differential duty of Rs. 5,02,551 and consequential penal provisions were invoked under Section 112 (a) of Customs Act, 1962.
3. The Commissioner who adjudicated the matter found the allegation that the goods were manufactured by M/s Republic Asahi Glass Company was not proved and further held that the investigation could not prove any underhand dealings between the suppliers and M/s Virat Enterprises.
Further the Commissioner held that neither the importer nor the supplier have got mind of hiding the manufacturer's name. Admitting the plea of the importer that the goods were of mixed lot and poor quality and the supplier might have used the empty packages bearing such markings, the Commissioner observed that in the absence of any trade panel to show the quality and origin of the goods the manufacturer's name cannot be precisely determined and quality ascertained. Relying on certain judicial pronouncements which were in favour of the assessee, the Commissioner dropped the proceedings.
4. Further the Department has compared the price list of local sole selling agent of M/s Asahi Glass Company in South India i.e. M/s P.K.Jaipee and Company and also with the invoice of M/s Swathi Enterprises of Madras who also import tinted Float Glass from M/s Asahi Glass Company.
5. The issue with reference to comparison of price list/invoice has been properly considered by the Tribunal in the order referred to above and paragraphs 6 and 7 of the said order are as under- "6. On a careful consideration of the submissions and on perusal of the records, including the judgments cited supra, we are of the considered opinion that the order passed by the Addl. Commissioner dropping the proceedings with regard to the entire matter is justified and correct. The Addl Commissioner in the OIO has gone about in great detail on all aspects of the matter and has rightly come to the conclusion that relied invoice is not contemporaneous in nature. Besides, quality, quantity and type of float glass imported were different than the invoices collected from the Indian agent The quantity of imported goods by the appellants was 6000 sq. ft. as against 8500 sq, ft. imported by M/s Swati Enterprises whose invoice relied by the DRI. The time of import also is different. Appellant importer has produced from the same Indian dealer invoices to show that their Asahi float glass prices were different and in the international market, the price would be fluctuating. The price is a negotiated on large quantity. There will be difference in price of the same article supplied to another purchases of small quantity.
This is the principle laid down in the Apex Court in Basant Industries (supra), Mirah Export (supra), Eicher Tractors and this Bench order in Spices Trading Corporation (supra). We note that there are other judgments also cited before us in Tirumurti Enterprises v. CCE, 1992 (39) ELT 139 (T) wherein also it has been laid down that the transacted price of higher quantity is required to be accepted in the absence of contemporaneous evidence of same quantity and of same type. A similar view has been expressed in CC v. International Exports Inc., 1992 (62) ELT 608 (T) wherein it has been held that transaction value is required to be accepted in the absence of imports of higher price of identical of similar goods.
Even in the case Laxmi Colour Lab v. CC, 1992 (62) ELT 613 (T), it has been held that enhancement of transaction value on the basis of mere telex quotation or offer is not permissible under Section 14 (1 A) of the Customs Act. In the case of CC, Calcutta v. Chem Crown (I) Ltd, 1998 (100) ELT 126 (T), it has been . held that invoice price cannot be routinely discarded except on the strength of a clear evidence that the invoice is not genuine and it does not show the real price as has been transacted between the importer and the foreign supplier, that something else has passed clandestinely between the importer, and the foreign supplier. The Tribunal held that transaction value could be discarded for the reasons given in Rule 4 of the Customs (Valuation) Rules, 1988 and not otherwise.
7. In view of the finding recorded by the Addl. Commissioner that the quantity of goods imported by importer herein was huge to the extent of 6000 sq. ft as compared to 8500 sq.ft. invoice relied by the department and time and place also being different, therefore his order is a correct order and the Commissioner (Appeals)'s order disturbing that portion of the order is not as per law and not keeping with the judgments noted supra. Respectfully following the judgments and the findings recorded by us, we set aside the impugned order of the Commissioner (Appeals) to this extent and allow this appeal with consequential relief, if any, as per law." 6. Since the point at issue has already been considered by the Tribunal as per Final Order No. 996-999/2001 and the same is in conformity with the findings of the Commissioner as per the impugned order, we do not find any infirmity therein and in the result the appeal filed by Revenue is hereby dismissed.