COMMISSIONER OF CUSTOMS Vs. DTE EXPORTS PVT. LTD.

JUDGEMENT

(1.) BY this appeal, the Revenue challenges the order in Appeal No. C3/731/0/2000 -Sea C. Cus No. 184/2001, dated 23 -3 -2001 passed by the Commissioner (Appeals), whereby he has allowed the appeal filed by the Respondent -importer by setting aside the order in original.

(2.) THE brief facts of the case are that the Respondent -importers have imported second hand machinery viz. testing equipment (Stem 3/4" tester baskets, stem tester teeth and rods, test shaker, sieve tester) covered by Special Import licence for a CIF value of USD 49,796.73. Based on the Chartered Engineer's certificate the department ignored the declared value and the value was determined by allowing depreciation of 33% on the estimated CIF value of equivalent to new machinery in the international market at USD 10500 and the assessable value was determined at USD 73,770.68 as against the declared value of USD 49,796.73 by the importers. After considering the submissions made by the importers before the Commissioner (Appeals), he has held that the lower authority has neither examined the acceptability or otherwise of the transaction value furnished by the appellant nor on any valid grounds rejected it. He has therefore, held that in the absence of anything to the contrary, the original authority was not empowered to determine the value under Rule 8 of the Customs Valuation Rules. In support of his view, he relied upon the judgment of the Hon'ble Apex Court in the case of Eicher Tractors v. CC, Mumbai reported in 2000 (122) E.L.T. 321 wherein it is held that "it is only when the transaction value is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially, through Rules 5 to 8. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2) there is no question of determining the value under the subsequent Rules in terms of Section 14 of the Customs Act, 1962". Relying on this decision the lower appellate authority set aside the order of the original authority and allowed the appeal of the party. It is against this decision of the Commissioner (Appeals), the Revenue has come in appeal on the following grounds :