Full Judgment
2. The appellant is an exporter of cotton shirts in respect of Shipping Bill, dt. 3-8-99 relating to 100% cotton gents shirts. Dispute arose regarding the valuation. While the appellant declared value at the rate of 10.75 US dollars (Rs. 463.83) per piece. The Commissioner of Customs fixed the same at Rs. 50/- on the basis of market enquiry. The appellant challenged the order before this Tribunal which resulted in Final Order No. 147/2001-A.3. The appellant contended that their declared value is in accordance with the purchase order of the customer abroad. They further submitted that the details of the market enquiry which was relied on by the Commissioner was not made available to them and that no opportunity was granted to them to cross-examine those persons from whom details regarding market price were alleged to have been obtained by the Revenue, This Tribunal took the view that since the details of the market enquiry were disclosed neither to the appellant nor in the impugned order, the case has to go back to the Commissioner. The order was, therefore, set aside and the adjudicating authority was directed to decide the matter afresh after disclosing the report of market enquiries to the appellant and after affording a representation.
Pursuant thereto the Commissioner has passed the present impugned order.
4. It is the case of the appellant that the Commissioner after finding that he cannot rely on the earlier market enquiry conducted fresh market enquiry and on that basis reduced the value of the goods. The appellant would contend that it was not open to the Commissioner to go on fresh market enquiry and to rely on such evidence to pass the impugned order as no such procedure was permitted under the order of remand.
5. Ld. DR on the other hand submitted that the goods considered were the same during the first market enquiry and the second market enquiry and therefore, there is no justification in contending that the assessment, cannot be made on the basis of the second market enquiry.
6. After hearing both sides and after going through the order of remand passed by the Tribunal, we find that there is justification for the complaint of the appellant. Under the order of remand, the Tribunal had directed the Commissioner to make available the market enquiry report to the appellant, give them an opportunity to submit their representation and then to decide the matter on that basis. What is contemplated in the order of this Tribunal, dt. 26-3-01 was the market enquiry which was conducted before the SCN was issued and which was relied on in the SCN and affirmed by the Commissioner. The notice was issued to the two persons through whom enquiry was conducted. One appeared and gave evidence to the effect that the signature in the statement given at the time of market enquiry was not that of any one from his firm. The second person did not turn up. Under these circumstances, no reliance has been placed by the Commissioner on the basis of the first market enquiry. Instead of disposing of the case on the above basis, the Commissioner on his own made further market enquiry and proceeded to decide the case on that basis. The final order passed by this Tribunal does not give room for any such action on the part of the Commissioner.
7. We, therefore, agree with the contention raised by the appellant that the Commissioner has exceeded the scope of remand order while passing the impugned order. In the result, we set aside the order impugned and allow the appeal.