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Agarwal Marbles & Industries Pvt. Ltd. V.  C.C.E., Jodhpur - (Customs, Excise and Service Tax Appellate Tribunal) (18 Apr 2017)

Enhancement of value based upon weekly average price is held as bad in law



In facts of present case, Appellant filed Bill of Entry for import of rough marble blocks imported from Turkey along with other relevant documents. As value declared by Appellant was at rate of US$ 253.48 per MT and as such was below floor price of US$ 275 per MT, as required in import license, Revenue took up matter for adjudication on ground that, value declared by Appellant was less as also on ground that, condition of the import license stand violated. Original Adjudicating Authority held that, Appellant had undervalued goods. He further observed that, as Appellant had not fulfilled condition of Notification, goods are liable to confiscation and Appellant liable to penalty. Accordingly, along with enhancing assessable value, he confiscated the same with an option to Appellant to redeem same on payment of redemption fine. In addition penalty was imposed upon Appellant in terms of provisions of Section 112 (a) of Customs Act 1962. On appeal against above order, Commissioner (A) upheld the same.

An identical dispute was subject matter of Tribunal's decision in case of R.K. Marble Pvt. Ltd. Vs. CCE Jaipur, wherein enhancement of value based upon weekly average price was held as bad in law. In present case also, it is the weekly average price of goods which has been adopted as assessable value, which was case in appeal of R.K. Marble Pvt. Ltd. As such, there is no distinction between two and law declared by R.K. Marble has to be followed.

It is well settled law that, NIDB data cannot be considered as reliable source for purpose of enhancement. Issue is no more res integra and has been settled by number of decisions of Tribunal. In case of Kelvin Infotech Pvt. Ltd. v. CCE Meerut, Revenue's reliance on NIDB data, for purpose of enhancement of value was not favored. There is no justifiable reasons to enhance value and hold that, transaction value declared by Appellant be adopted as assessable value for purpose of payment of Customs duty.

Regarding contravention of licenses, as per licenses given to Appellant, imports should be at floor price of USD 275 per MT. Same was situation in case of R.K. Marbles and it was held that, even though assessment for purpose of customs duty is to be done on transaction value but as said transaction value was below floor price, there is violation of policy and goods are liable to confiscation and Appellant liable to penalty. In present case also, Learned Advocate appearing for Appellant has accepted violation of condition of policy. Accordingly, confiscation is upheld but following decision in case of R.K. Marbles, redemption fine and penalty is reduced.

Relevant : R.K. Marble Pvt. Ltd. Vs. CCE Jaipur MANU/CE/0027/2007: 2009 (245) ELT 383 (Tri-Del), Kelvin Infotech Pvt. Ltd. vs. Commissioner of Cus., C. Ex. and S.T. MANU/CE/0622/2014


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