Full Judgment
2. The importers had imported certain consignments of 'zinc dross' scrub grade specifications vide various Bills of Entry and goods were examined, samples were tested and goods were cleared. However, as regards valuation, the declared price of such goods were noticed to vary between US$ 510 to 800 p.m.t. within the span of two months. The factors of variation in purity and quantity were not found to have effected the prices. Relying on the London Metal Exchange price for 'zinc dross' of similar grades during the relevant period, it was found that the declared price of US$ 510 per p.m.t. and US$ 610 p.m.t. in the present imports was not a genuine price and calculations based on the London Metal Exchange prices and the price in the domestic market suggested that the FOB value should be US$ 840 p.m.t for 92% purity and Show Cause Notices were issued to the importers asking them why prices should not be enhanced by application of Rule 8 of the Customs Valuation Rules, 1988. The lower authorities confirmed the enhancement of valuation. In appeals, the Commissioner (Appeals), after going through the submissions and the materials on record found: i) that the prices shown as per London Metal Exchange were not for international market as the heading appears to show that the pices represent the current market value in Europe/UK, and regional variations were accepted by certain remarks observed by him in the London Metal Exchange document, and relying on a letter dated 12.9.1997 from the Metal Bulletin itself which stated that "prices should not necessarily be taken as a price for actual trading between Australia, the USA, Dubai, Singapore & India." He rejected the theoretical prices worked out based on Metal Bulletin to be representing the actual transaction value.
ii) As regards reliance Of the lower authorities on an invoice of M/s Remet Co Ltd, UK, he observed that there was material brought to his notice that this UK company was a manufacturer as a letter was produced from the supplier that they were only a trader of zinc dross and relying upon the decision of the Supreme Court in Basant Industries that stray instance of import at higher value should not be adopted totally ignoring other attending circumstances. He did not approve the reliance of this invoice.
iii) As regards the reliance on the local market value of zinc dross as published in the Economic Times and reliance by the authorities, he found that these were also indicative prices and they did no represent actual transaction values in the local market at those levels. Since no bills, worksheets etc were produced and are relied upon to approve the price indicated in the Economic Times to be existing in the transaction.
He therefore set aside the order of the lower authorities. Hence this appeal by the Revenue.
3. After hearing both sides, and considering the materials on record, it is found that: a) in the case of 2003 (160) ELT 410, a Bench of this Tribunal has held that enhancement of declared price on basis of admission by two other importers of having paid higher price that the one declared was not sustainable to approve under valuation is relied upon by the Ld Advocate and the Advocate also relied upon the decision of 2003 (156) ELT 922 of this Tribunal wherein it was held that theoretical price based on London Metal Exchange Bulletin was not accepted without any corroborative evidence. In view of these decision, and nothing contrary have been shown, we find no material to upset the order of the Ld Commissioner (Appeals) arrived at in this case, based on the grounds taken by the Revenue in the present appeals.
More so, we find that the imports were earlier to the period of introduction of Rule 10A of the Valuation Rules.