Page 246 - ELT_1st September 2020_Vol 373_Part 5

684 EXCISE LAW TIMES [ Vol. 373

material on the basis of which the Assessing Officer arrives at his own as-
sessable value.”
4. He further submitted that there was a delay of five years in issue of
Show Cause Notices and the goods have been lying in the Customs custody till
now and the importers are put to great financial difficulty. He has requested for
setting aside the impugned orders and assessing the goods at the value at which
the Bills of Entry were filed. He also further relied on Handling of Cargo in Cus-
toms Area Regulation, 2009 and claimed that as provided under clause (I) of
Regulation 6(1), since the goods were under detention by the orders of the prop-
er officer for the purpose of investigation by SIIB, appellant should not be
charged with any rent or demurrage under the said goods. He has further re-
quested to order for early release of the goods.
5. Heard the Ld. ARs for Revenue who supported the impugned or-
ders.
6. Having considered the submissions from both sides and on perusal
of records, we note that though the adjudicating authority has stated that the
goods were found to be branded, the information as to which brand the goods
were belonging to is totally missing in the adjudication order. We also note that
the objection raised by the appellant in respect of documents which were load
port documents is valid and Revenue could not establish that the load port doc-
uments were admissible evidence for relying for initiating any proceedings. We
find that the Hon’ble Supreme Court in the case of Commissioner of Central Excise
v. Sanjivani Non-Ferrous Trading Pvt. Ltd. (supra) has extracted from Hon’ble Su-
preme Court’s decision in the case of South India Television P. Ltd. reported as
2007 (214) E.L.T. 3 (S.C.), wherein it was held if the department wants to allege
undervaluation it must make detail inquiries, collect material and also adequate
evidence. When undervaluation is alleged, the department has to prove it by ev-
idence or information about comparable imports. For providing undervaluation,
if the department relies on declaration made in the exporting country, it has to
show how such declaration was procured. We hold that the department could
not establish as to how the information about load port document was procured
by the Revenue and therefore the information stated in the Show Cause Notices
obtained from exporting country is not reliable as evidence. We also find that
other than that there is no evidence relied on in the Show Cause Notice for alleg-
ing undervaluation. We therefore hold that undervaluation in the present case is
not established. We further rely on the ruling by Hon’ble Supreme Court in the
case of Commissioner v. Sanjivani Non-Ferrous Trading Pvt. Ltd. (supra) that in the
absence of any contrary evidence, the value actually paid has to be accepted as
Transaction Value. The value actually paid is Invoice value. We therefore set
aside the impugned orders and allow both the appeals with direction to Revenue
to assess the Bills of Entry on the basis of value declared in the Bills of Entry and
complete the assessment within a period of two weeks from the date a copy of
this order is served by the appellant on Revenue. We also hold that as provided
under Handling of Cargo in Customs Area Regulation, 2009, the appellants are
entitled for exemption from any rent or demurrage. In the above terms, both the
appeals are allowed.
(Dictated and pronounced in open Court)
_______

EXCISE LAW TIMES  1st September 2020  246