Page 274 - ELT_1st September 2020_Vol 373_Part 5

712 EXCISE LAW TIMES [ Vol. 373

ue based on PVC content, which is factually incorrect. Learned counsel further
argued that law is well settled regarding the allegation of undervaluation, that
unless there is a cogent evidence to prove undervaluation, it is mandatory for the
Customs to accept the price actually paid. Mere presumption of the investigation
officer without considering the value of the contemporaneous import is not a
reason to allege undervaluation. If the transaction can be determined under Rule
4(1) of the Customs Valuation Rules, 2007 and does not fall under any exceptions
under Rule 4(2), then valuation under subsequent Rules is out of question. Rule 4
allows for the transaction value to be determined on the basis of the identical
goods and Rule 5 allows for the transaction value of similar goods imported into
India at the same time. Further, as per Rule 4(3), if more than one transaction
value of identical goods is found, lowest among such value shall be considered
to determine the value of the goods. In support of his submissions, the Learned
counsel relied upon the following decisions :
• Sounds N. Images v. Collector of Customs - 2000 (117) E.L.T. 538 (S.C.)
• Damehra Steels and Forgoing (P) Ltd. v. CC, Calcutta - 1996 (84) E.L.T.
116 (Tribunal)
• Collector of Customs, Bombay v. Nippon Bearings (P) Ltd. - 1996 (82)
E.L.T. 3 (S.C.)
7. On the other hand, the Learned AR defended the impugned order.
8. After considering the submissions of both the parties and perusal of
the material on record, we find that in the show cause notice the Revenue has
alleged that the supplier of the goods M/s. K.H.I. Vanich Group Co., Bangkok
appears to be a trader and not the manufacturer. For this allegation, in the show
cause notice, Revenue has no basis because the appellant has given the invoices
issued by the said supplier and has submitted in the reply to the show cause no-
tice that the said supplier is the biggest manufacture of the impugned goods in
the world. Further, we find that the goods have been imported by the appellant
under ASEAN Agreement between two Sovereign States and if the Department
has any cogent evidence to come to the conclusion that no such manufacturer
exist, then they should have made proper enquiry to blacklist such a supplier but
the same has not been done at all. Further, we find that the Commissioner on its
own has come to the conclusion that the raw material for the impugned goods is
LDPE and LLDPE and the value of raw material ranges from UDS 1180 to USD
1270 per metric tonne without any basis. He has observed in the impugned order
that it is available in the Public Domain that LDPE and LLDPE are the raw mate-
rial for the impugned goods. Further, we find that even in the test report ob-
tained by the Revenue from CIPET, Cochin, it is not mentioned that LDPE and
LLDPE is the raw material for impugned goods. The information relied upon by
the Commissioner available in the Public Domain is not admissible as evidence
in law when there is a specific test report available of authorized agency. Further,
the certificate issued by the manufacturer which is also on record, shows that
LDPE and LLDPE is not the raw material for the impugned goods but the same
has not been considered by the Commissioner. Further, we find that in the pre-
sent case, the appellant has imported the material from Thailand whereas the
Commissioner has relied upon the contemporaneous imports from China which
cannot be considered as contemporaneous import at all. Further, we find that the
appellant himself earlier imported the same product vide Bill of Entry No.
5547795, dated 12-3-2018 and declared its value which was accepted and the

EXCISE LAW TIMES  1st September 2020  274