NEHA INTERCONTINENTAL (P) LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE appellants herein filed five bills of entry during the period between 26 -4 -2004 and 24 -5 -2004 for clearance of 16,000 sets of San brand Air -Conditioners imported from China under a contract, declaring the value as US 85 per piece. The uniform value declared for 4 different models was disputed on the ground that the appellants had not opened letter of credit; that no quantity discount was shown to have been given by the foreign supplier to any other buyer and that the appellants did not produce the manufacturer's invoice, on the basis of NIDB data purported to be for similar model of same tonnage and same country of origin. It was proposed to increase the value for model No. KFR -51 GW to Rs. 9,100/ - CIF, for model KFR 61 -GW to Rs. 13,325/ - CIF, for model K -66 GW to Rs. 14,000/ - CIF and for Model ASW -24 to Rs. 14,000/ - CIF per piece. A quantity discount of 10% was proposed and thereafter the values for the models were enhanced to Rs. 8190/ -, Rs. 11,993/ -, Rs. 12,500/ - and Rs. 12,600/ - respectively. The show cause notice issue to the appellant was adjudicated by the Dy. Commissioner, who enhanced the values to Rs. 9,000/ -, Rs. 13,325/ -, Rs. 14,000/ - and Rs. 14,000/ - respectively, and after extending 10%, loaded the values of the respective models air -conditioners to Rs. 8,190/ -, Rs. 11,993/ -, Rs. 12,600/ - and Rs. 12,600/ - respectively, applying the provisions of Rule 6 of the Customs Valuation Rules, 1988. This order was upheld by the Commissioner of Customs (A); hence this appeal before the Tribunal.

(2.) WE have heard both sides.

(3.) FROM the NIDB data we see that it is only one model shown therein namely model KFR -51 GW that tallies with one of the models imported by the appellants. There is no material on record to show that the goods are comparable in quality. Further the level of import is not comparable, as in respect of Model KFR -51 GW which is the only model tallying with one of the 4 models imported, only 10 sets were imported. Therefore the NIDB date does not establish that the contemporaneous import was of similar goods imported from China. This being so, Rule 6 of the Customs Valuation Rules, which provides that "subject to the provisions of Rule 3 of these rules, the value of imported goods shall be the transaction value of similar goods sold for export to India and imported at or about the same time as the goods being valued", which has been applied by the authorities below, is not applicable. Since the evidence produced does not establish contemporaneous import of similar goods the judgment of the Apex Court in the case of Punjab Processors Pvt. Ltd. v. Collector of Customs and Collector of Customs v. Shibani Engineering Systems cited before us by ld. SDR does not advance the case of the department for the reason that in both the cases the Apex Court held that Customs authorities are not bound by the invoice value but can rely on contemporaneous evidence to show that the invoice value is not the correct value. Since the NIDB data does not establish whether the data was of similar goods and since there is also vast difference in level of import, the invoice value is required to be accepted in the light of the Tribunal's order in the case of Commissioner of Customs, New Delhi v. Modern Overseas .