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and pertains to the import of ‘hot-rolled steel plates (non-alloy)’ against five bills
of entry nos. 880746 to 880750/30-1-2009, under contract dated 4th December,
2008 with M/s. AM International, Dubai, admittedly a trader in goods manufac-
tured by M/s. Arcelor Mittal, Romania.
2. The first appellate authority had set aside the confirmation of en-
hancement of value from the declared US $ 400 per MT to US $ 892 per MT. This
order was quashed by the Tribunal on the plea of Revenue that it had been de-
cided ex parte without hearing the departmental contentions. We take notice that
the order-in-original was not preceded by a show cause notice but were assess-
ments of the bills of entry filed by the importer and that the first order of the ap-
pellate authority had been decided ex parte.
3. In the fresh proceedings, enhanced assessable value was upheld on
the ground that the invoices, supplied along with the bill of entry, were not that
of the manufacturer and that import of similar goods by M/s. Mazgaon Dock
Ltd. on the same vessel from the same supplier as well as two other imports of
M/s. Standard Galva and M/s. Bharat Heavy Electricals Ltd. in December, 2008
from the same supplier were priced higher than that at which the impugned im-
ports were. The first appellate authority, in the impugned order, has relied upon
the present facts and upon the decision of the Hon’ble Supreme Court in Punjab
Processors Pvt. Ltd. v. Collector of Customs [2003 (157) E.L.T. 625 (S.C.)] and of the
Tribunal in African Trading Co. v. Commissioner of Customs [1993 (64) E.L.T. 497
(T)], G.R. Batra v. Commissioner of Customs [2004 (170) E.L.T. 571 (T)], Chirag En-
terprises v. Commissioner of Customs (EP), Mumbai [2008 (232) E.L.T. 730 (T)], Dow
Chemicals P. Ltd. v. Commissioner of Customs, Kandla [2008 (226) E.L.T. 420 (Tri. -
Ahmd.)] and Schokhi Industries Pvt. Ltd. v. Commissioner of Customs, Nhava Sheva
[2002 (146) E.L.T. 462 (Tri.)] to upheld the assessment.
4. We have heard Learned Counsel for the appellant and Learned Au-
thorised Representative at length.
5. We find that the impugned order is based on certain decisions cited
therein without findings on the applicability to the facts presented by the appel-
lant herein.
6. Though there is no provision under Section 128 of Customs Act, 1962
for hearing both sides before passing of an order by the Commissioner of Cus-
toms (Appeals) and it was necessary to issue a show cause notice proposing the
grounds of enhancement, unless waived by the importer, the Tribunal was mag-
nanimous enough to allow the pleas of Revenue to be argued before the first ap-
pellate authority on their appeal. It was expected that the first appellate authority
would render its decision after hearing, and considering, the submissions of both
sides. It appears from the records that the first appellate authority has merely
taken note of the submissions and, in rendering its findings, has reiterated the
single submission of Revenue that the invoice, unless that of the manufacturer,
was liable to be rejected and as, in comparison with higher contemporaneous
prices at the time of import, the least was adopted as the substitute, there was no
error in the assessment.
7. The rigidity of a contract entered into by a public sector unit, such as
M/s. Mazgaon Dock Ltd. in 14th December, 2008, lacks comparability with the
flexibility in renegotiation of a contract of the appellant when the price of steel
was claimed to have declined sharply. It was also contended by the appellant
that M/s. Mazgaon Dock Ltd. had imported ‘prime goods’ whereas theirs, ap-
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