PRABHU DAYAL PREM CHAND Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Challenge in this appeal is against the order passed by the Commissioner of Customs (Appeals) dated 1 -11 -2001. The appellant filed two Bills of Entry dated 26 -9 -98 and 17 -12 -98 for clearance of Brass Scrap as per ISRI grade 'Honey' arid Copper Scrap No. 2 as per ISRI grade Birch/Cliff respectively. The Bills of Entry were assessed at declared invoice value, namely CIF US 1100 and 1300 PMT respectively and the goods were examined and cleared after payment of Customs duty. Subsequently, on noting that the London Metal Exchange (LME) prices prevalent on the date of import were more than the price declared by the appellant, additional duty on the above basis was demanded. This demand was confirmed by the Deputy Commissioner of Customs. The appeal filed was dismissed by the Commissioner (Appeals).

(2.) The contention raised by the appellant that the assessable value cannot be enhanced on the basis of the prices published in LME alone, but it must be supported by contemporaneous import, was rejected by the lower authorities by referring to a decision of this Tribunal in Commissioner of Customs, Mumbai v. Mu -kand Ltd. 1999(107) E.L.T. 653 (T). In the order by the Deputy Commissioner there was a statement in Para 16 that the department had noticed contemporaneous imports at almost same price at which demand notices were raised. No details of such imports are made available to the appellant nor placed before us at the time of hearing of the appeal.

(3.) The appellant would contend that the principle that theoretical price worked out based on the LME bulletin cannot be accepted as the basis in the absence of any corroborative evidence import at the prices indicated has been repeatedly accepted by this Tribunal. In Ruchi Associates v. Collector of Customs -1992 (59) E.L.T. 155 (Tribunal) and Pawan Goel v. Commissioner of Customs, New Delhi - 2001 (135) E.L.T. 1425 (Tri. - Del.). Even in the case relied on by the Revenue, namely, Commissioner of Customs, Mumbai v. Mukund Ltd. 1999 (107) E.L.T. 653 (T) it is clear that the value was fixed on the basis of contemporaneous import. It was not on the basis of LME price alone. In the present case as mentioned above, even though there is a reference to contemporaneous import in the order passed by the Deputy Commissioner no material regarding such import has been placed before us or made available by the appellant at any point of time. Therefore, assessment in this case has to be taken as having been made purely on the basis of LME Bulletin without any corroborative evidence of imports at or near that price which is not permissible under law. We, therefore, set aside the impugned order and allow the appeal.