GUPTA EXPORTS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) IN this case the Commissioner of Customs has passed the following order :

(2.) (i) I order enhancement of value of 128.55 MT split, grade betel -nuts to US $ 780/MT and that of 127.10 MT whole grade betel -nuts to US $ 1100/MT covered under Bills of Entry viz. Nos. 257597, 257598, 259724, 259725 and 257792/2000 under Section 28 of the Customs (Valuation) Rules, 1988 (sic) [Customs Act, 1962].

(3.) LD . Counsel Shri R. Sudhakar appeared for the appellants and pleaded that the goods are agricultural products which get deteriorated due to long storage and the prices depend upon the crop yield and other factors and the quality can be assessed only on test and the item being put to use. He further contended that transaction value cannot be ignored unless it is shown that there had been clandestine remittance of value in excess of the invoice value and mutuality of interest between the sellers and buyers is to be established before resorting to rejection of the invoice value. He further contended that no evidence has been let in by the department that there was any remittance of money in excess of the invoice value. They have also contended that the two contemporaneous imports at higher prices relied upon by the department is not correct as they are not comparable for the reason that it is for the department to discharge the burden that there was undervaluation or misdeclaration which burden has not been discharged by the department. They have also taken the ground that for the purpose of adopting the price of contemporaneous import under Rule 5, the import should have taken place at or about the same time and the identical goods should be the same in all respect including physical characteristics, quality, commercial level and the country of origin should be the same. They also contended that the contemporaneous imports cited in the case of M/s. Gandhi Exports, Mumbai was some time in October 99 whereas their imports were in January/February, 2000 and hence it cannot be considered as contemporaneous imports. Further, in the case of M/s. Diamond Traders relied upon by the department, the quantity involved was only 14 tonnes whereas in the present case, the quantity is 255.65 MTs which is much higher and hence it is not comparable. Similarly the quantity imported by M/s. Diamond Trading Company was only 30 MTs and cannot be compared to the quantity imported by them which is more than 250 MTs. Ld. Counsel also relied on the various judgments including the decision of this Tribunal in the case of Spice Trading Corporation v. CC reported in : 1998 (104) E.L.T. 665 wherein it was held that stray instances of import at higher value is not to be adopted totally ignoring the other attending circumstances and that the transaction value is to be adopted unless the department can produce the objective reasons and strong evidence to show that the said declared value was not bona fide and correct and the burden is on the department to discharge the same. The above judgment has been followed again in the matter of Saudagar Exports, J.M. Sons and Archana Associates v. CC, Chennai vide Final Order Nos. 698 -700/2002, dt. 11 -6 -2002 [ : 2002 (145) E.L.T. 543 (Tribunal)] which was clearly an identical case and the goods also were compared of the same importers namely Diamond Traders, Chennai, and Gandhi Exports, Bombay. Ld. Counsel, therefore, further submitted that "Foreign Bill Transaction advice" dt. 19 -4 -2000 from M/s. Global Trust Bank was submitted to the Commissioner as a proof of payment covering the subject consignment. Ld. Counsel submits that the evidence of payment of invoice value through the "Foreign Bill Transaction Advice" dt. 19 -4 -2000 does prove beyond doubt the truth and accuracy of the declared value.