Ramesh Agarwal v. Commissioner Of Customs, Jnch .

Dr. Satish Chandra, President:— Both the appeals are filed by appellants against Order-in-Appeal No. 104 to 110 (Gr.IV)/2017 (JNCH)-Appeal-II dated 21.02.2017.

2. Brief facts of the case are that during the period November 2002 to September, 2003, Shri Dileep Dugar, Proprietor of M/s. Dee Vee Metals has sold some consignments of ‘Non Ferrous Metal Scrap’ on high sea sales to the appellants Mittal Pigments Pvt. Ltd, Leadage Alloys India Pvt. Ltd., Associated Stabplast & Chemicals and Premier Pigments. The metal scrap was sold in 34 consignments of which demand on 19 consignments were found time barred of the remaining 15 of the said 34 consignments that was investigated it was found that in 13 of the consignments imported by various importers from Germany there was under-invoicing. So the value of the consignments were enhanced and penalties were imposed. Being aggrieved, the appellants filed the present appeals.

3. In the present case, Shri Dileep Dugar, Proprietor of M/s Bhitti Impex and M/s. Dee Vee Metals has sold the ‘Non Ferrous Metal Scrap’ on the basis of high sea sales.

4. The sole case of the department is made out on the basis of invoices of higher value received from Brussels through Consulate General of India (Trade) for the impugned consignments submitted for clearance of the consignments.

5. After hearing the rival submissions of both parties and in the light of the above discussion, we are of the view that the department has failed to collect corroborative evidence. It may be mentioned that such uncorroborated allegations cannot be made basis for assessment of imports/exports as held by the Hon'ble Supreme Court in the case of CC v. South India Television Pvt. Ltd. - 2007 (214) ELT 3 (SC) as well as Tribunal in the following cases:—

(a) Contessa Commercial Co. op. Pvt. Ltd., 2007 - (208) ELT 299 (Tri. Kol),

(b) Ramkrishna Sales Pvt. Ltd. - 2008 (230) ELT 431 (Tri. Ahmd.),

(c) Taito Watch Manufacturing Inds. v. CC - 2004 (173) ELT 17 (Tri. Del.).

There is a strong possibility of the supplier having made export declaration and enhanced the price in order to claim the incentives. As the consignments were subjected to fixed Tariff rate, the appellants should not be penalised for the deed of the supplier who enhanced the value with intent to avail some incentives available to them in their country. In the instant case the original authority has recorded various statement such as Bank statements evidencing that nothing had been paid more than the agreed price through banking channel. For the above mentioned reason, we are of the view that the department has no material in possession for rejecting the transaction value stated in the invoice. For the reasons mentioned above, we set aside the impugned order and allow the appeals.

6. In the result, the appeals filed by the appellants are allowed.