(1.) THIS is a Revenue appeal against Order -in -Appeal No. 42/2003 Cus dated 31.12.2003 by which the Commissioner (A) has set aside the Order -in -Original rejecting the refund claim availed by the assessee. The assessee had imported CRGO Mill Rejects/Secondary Coils/Scrap Materials from USA vide Bill of Entry No. 57 dated 21.1.2002 by declaring the value at US 440 per MT. They had enclosed a certificate of origin, a certificate from Stamford Chamber of Commerce of having examined the suppliers invoice and shippers affidavit concerning the price of the merchandise and certifying that such price is less than the supplier's selling invoice price of US 440 per MT, test certificate containing details of the materials and contents along with detailed packing list, commercial invoice from the supplier along with the Bill of Entry. However, the Revenue did not accept the value and enhanced the same without any notice to the importer to US 700 per MT resulting increase in duty liability of Rs. 1,16,731/ -. They paid the amount as they were requiring the material urgently and filed a refund claim under Section 27 of Customs Act on the ground that the revision in value was done in an arbitrary manner without any basis by rejecting the genuine transaction value. They raised several other grounds. However, they were issued Show Cause Notice dated 19.8.2002 proposing to reject the same. After adjudication their refund claim was rejected.
(2.) HOWEVER , the Commissioner (A) has noted the Apex Court judgment rendered in the case of Eicher Tractors Limited reported in 2000 (122) ELT 321 (SC) wherein it has been held that transaction value cannot be rejected unless there are special circumstances as laid down in Section 14(1) of the Customs Act. The Commissioner after detailed examination found that there were no such circumstances as appraised in Rule 4(2) of Customs Rules and therefore, the transaction value was required to be accepted. The Commissioner also noted that there is no evidence placed by the Revenue for rejecting the transaction value. She has noted the Tribunal ruling rendered in the case of CC, Calcutta v. Chem Crown India Ltd., . The Commissioner has also noted that the Adjudicating Authority has gone beyond the scope of the Show Cause Notice and on this ground alone the order of Adjudicating Authority was liable to be set aside in terms of the Apex Court judgment dismissing the Revenue's appeal in Civil Appeal No. 4003/98 as in the case of Collector v. Sunrise Structural and Engineering (P) Ltd.
(3.) THE learned JCDR submits that the appellants have not challenged the assessment and therefore in terms of the Apex Court judgment rendered in the case of Priya Blue Industries v. CC as , the refund is not sustainable.