SAAHIL TRENDS Vs. COMMISSIONER OF CUSTOMS (PREV.)

JUDGEMENT

(1.) THE issue involved in this appeal, filed by M/s. Saahil Trends, relates to enhancement of the assessable value of the goods imported by them.

(2.) SHRI Krishna Kant, learned Advocate, submitted that the appellants imported 1000 MT PVC Resin from Korea through M/s. G.A. International, Dubai in 1995; that the Bill of Entry was filed on 4 -1 -1996 in which the value declared by them was US Dollars 600 PMT; that the Department wanted to ascertain international price of the product as prevalent at or around the time of import; that on going through the "PLATT" magazine, the Department was of the view that the price trends of the PVC Resin in Far East Asian countries was in the range of US Dollars 590 to 650; that a show cause notice was issued to them for enhancing the assessable value from US Dollars 600 to US Dollars 640 PMT; that, subsequently, an Addendum to show cause notice was issued on 18 -3 -1998 enhancing the assessable value on the basis of some computer print out; that the Commissioner, under the impugned Order, has rejected the transaction value of US Dollars 600 PMT and enhanced the value by US Dollars 360 PMT under Rule 5 of the Customs Valuation (Determination of Price of the Imported Goods) Rules, 1988. The learned Advocate, further, submitted that the Department has not furnished them the Bill of Entry and other related documents on the basis of which the assessable value had been enhanced; that the abstract of computer print out by itself cannot be treated as an evidence; that the quantity of PVC Resin, imported under the relied upon computer print out as per Bill of Entry No. 970 dated 3 -11 -1995, is 12931 kgs. whereas they have imported substantial quantity of 1000 MT and as such there cannot be any comparison between two imports and they cannot be termed as identical goods under Rule 5 of the Customs Valuation Rules. The learned Advocate also contended that in the present matter, the question of production of manufacturer's invoice does not arise as at no point of time it was called for and in any case this ground is not sustainable under Rule 10(1)(b) of the Customs Valuation Rules; that, further, suppliers in their case and in the case of relied upon Bill of Entry are different and, therefore, the goods cannot be treated as identical goods; that the invoice price in the present case is a contract price which is based upon the negotiations. Reliance has been placed on the Supreme Court decision in the case of Basant Industries v. Additional Collector of Customs, Bombay, 1996 (81) E.L.T. 195 (S.C.) wherein the Supreme Court has held that in the business word, consideration or relationship with the customer is also a relevant factor and that a price which is offered by a supplier to an old customer may be different from the price which the same supplier offers to a totally new customer.

(3.) WE have considered the submissions of both the sides. As per Rule 3 of the Customs Valuation Rules, the value of imported goods shall be the transaction value. According to Rule 4 transaction value of the imported goods shall be the price actually paid or payable for the goods when sold for export to India adjusted in accordance with the provisions of Rule 9 of the Valuation Rules. In the present matter, the Revenue wants to discard the transaction value on the ground that the impugned goods had been imported by others at a much higher price. In support of enhancing the assessable value, the Revenue is relying upon the computer print out of Bill of Entry No. 970 dated 3 -11 -1995 according to which the impugned goods were imported @ US Dollars 960 PMT. It is the case of the Department that applying Rule 5 of the Valuation Rules, the goods have to be assessed @ US Dollars 960/ -. Rule 5 of the Customs Valuation Rules provides that the value of the imported goods shall be the transaction value of identical goods sold for export to India and imported at or about at the same time as the goods being valued as Rule 2(1)(c) of the Customs Valuation Rules, defines identical goods. According to this sub -Rule, identical goods means imported goods which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods, produced in the country in which the goods being valued were produced and produced by the same person who produced the goods, or where no such goods are available, goods produced by a different person. In absence of the Bill of Entry, on the basis of which the Department is seeking to enhance the value, it is not possible to come to the conclusion as to whether the goods imported under the relied upon Bill of Entry are the goods identical to the goods imported by the appellants. The description of the goods is not sufficient to hold them as identical goods. Rule 5 also provides that in applying this Rule, the transaction value of identical goods in a sale at the same commercial level and in substantially the same quantities as the goods being valued, shall be used to determine the value of the goods. The learned Advocate for the appellants emphasised this fact which has not been rebutted by the Revenue; that the quantity of goods imported under the relied upon Bill of Entry was only 12.5 MT as against 1000 PMT imported by them. Therefore, it cannot be said that the goods were identical as the commercial level and the quantities are different. We are, therefore, of the view that the Revenue has not established that the goods covered by Bill of Entry No. 970 dated 3 -11 -1995 were identical goods as defined in Customs Valuation Rules. Accordingly, the Order cannot be sustained. We, therefore, set aside the impugned Order and allow the appeal.