Associated Brothers Vs. Commissioner of Customs - Court Judgment

Excerpt:
1. this is an appeal under section 129(a) of the customs act, 1962 filed by the appellant praying waver of pre-deposit of the duty amount of rs. 1,53,051/- and its recovery, pending disposal of the appeal by granting stay order.2. the dy. commissioner of customs, appraising group 2bi, has confirmed the demand of rs. 1,53,051/- under section 28(2) of the customs act, 1962 being the duty short levied while rejecting the invoice price under rule 10(a) of the custom valuation (imported goods) rules, 1988, read with section 14 of the customs act, 1962 and ordered the value of the goods to be taken at usd-526 pmt, cif mumbai, for assessment to duty in. terms of rule 8 of the custom valuation rule 1988, read with section 14(1) of the customs act, 1962.3. this order is upheld by the commissioner of customs (appeals), hence the appeal.4. it is observed by the commissioner of customs (appeals) that the appellants have failed to produce the manufacturer's invoice in spite of ample opportunity. he has found that the lower authority arrived at the price as per prevailing platt's polymerscan during the relevant period.5. the facts are that m/s. associated brothers, 13/g, apollo industrial premises co-op. society ltd., mahakali caves road, andheri (east), mumbai-400 093, imported 68 mts of hdpe film grade hd 3080 and sought clearance under bills of entry nos. 13504, 13303, 13309 and 13513 all dated 31.12.1998 at a declared price of us$ 450 pmt, cif mumbai. it was observed that the import was against a sale confirmation dated 01.09.1998, whereas the date of shipment of the goods was 30.11.1998.the import was against an invoice raised by m/s. overseas produce co., hong kong, a trader.6. it is urged that there are no valid grounds in discarding the invoice price as not being the transaction value since none of the four exceptions mentioned in rule 4(2) of the custom valuation (imported goods) rules, 1988 are applicable in the present case and relied upon the decision reported in the case of adani exports ltd. v. commissioner of customs, vishakapatnam [2000 (116) elt 715 (tri)]. it is observed that "platt's price report is not based on transactions but merely is a compilation of price ranges of various plastic materials. further more as these are region-wise (and not country-wise), therefore, they do not represent transaction values. therefore, it cannot be accepted that the assessable value can be enhanced on their basis in the absence of instances of contemporaneous imports and as no clear and convincing evidence to prove any fraud in the declared values is lea with respect to hdpe (ig) and hdpe (fg)".7. the appellants were not disclosed the method of platt price being resorted to load the value. therefore, following the decision cited above, this appeal is allowed in-remand for fresh disposal by the commissioner of customs (appeals). order accordingly.

Judgment:
1. This is an appeal under Section 129(A) of the Customs Act, 1962 filed by the appellant praying waver of pre-deposit of the duty amount of Rs. 1,53,051/- and its recovery, pending disposal of the appeal by granting Stay Order.

2. The Dy. Commissioner of Customs, Appraising Group 2BI, has confirmed the demand of Rs. 1,53,051/- under Section 28(2) of the Customs Act, 1962 being the duty short levied while rejecting the invoice price under Rule 10(A) of the Custom Valuation (Imported Goods) Rules, 1988, read with Section 14 of the Customs Act, 1962 and ordered the value of the goods to be taken at USD-526 PMT, CIF Mumbai, for assessment to duty in. terms of Rule 8 of the Custom Valuation Rule 1988, read with Section 14(1) of the Customs Act, 1962.

3. This Order is upheld by the Commissioner of Customs (Appeals), hence the appeal.

4. It is observed by the Commissioner of Customs (Appeals) that the appellants have failed to produce the manufacturer's invoice in spite of ample opportunity. He has found that the lower authority arrived at the price as per prevailing Platt's Polymerscan during the relevant period.

5. The facts are that M/s. Associated Brothers, 13/G, Apollo Industrial Premises Co-op. Society Ltd., Mahakali Caves Road, Andheri (East), Mumbai-400 093, imported 68 MTs of HDPE Film Grade HD 3080 and sought clearance under bills of entry Nos. 13504, 13303, 13309 and 13513 all dated 31.12.1998 at a declared price of US$ 450 PMT, CIF Mumbai. It was observed that the import was against a sale confirmation dated 01.09.1998, whereas the date of shipment of the goods was 30.11.1998.

The import was against an invoice raised by M/s. Overseas Produce Co., Hong Kong, a trader.

6. It is urged that there are no valid grounds in discarding the invoice price as not being the transaction value since none of the four exceptions mentioned in Rule 4(2) of the Custom Valuation (Imported Goods) Rules, 1988 are applicable in the present case and relied upon the decision reported in the case of Adani Exports Ltd. v. Commissioner of Customs, Vishakapatnam [2000 (116) ELT 715 (Tri)]. It is observed that "PLATT's price report is not based on transactions but merely is a compilation of price ranges of various plastic materials. Further more as these are region-wise (and not country-wise), therefore, they do not represent transaction values. Therefore, it cannot be accepted that the assessable value can be enhanced on their basis in the absence of instances of contemporaneous imports and as no clear and convincing evidence to prove any fraud in the declared values is lea with respect to HDPE (IG) and HDPE (FG)".

7. The appellants were not disclosed the method of PLATT price being resorted to load the value. Therefore, following the decision cited above, this appeal is allowed in-remand for fresh disposal by the Commissioner of Customs (Appeals). Order accordingly.