V. Padmanabhan ORDER
Archana Wadhwa, Member (J)
1. As per facts on record, the appellant filed the Bill of Entry dated 18.10.2010 at ICD Jaipur for import of 170.400 MT of rough marble blocks imported from Turkey along with other relevant documents. The said import of rough marble blocks was covered by an import license issued in pursuance of policy circular No. 29/2009 : MANU/DGFT/0076/2010-14 dated 31.03.2010, enabling the appellant to import rough marble blocks, subject to floor price of US $ 275 per MT.
2. As the value declared by the appellant was at the rate of US$ 253.48 per MT and as such was below the floor price of US$ 275 per MT, as required in the import license, Revenue took up the matter for adjudication on the ground that the value declared by the appellant was less as also on the ground that the condition of the import license stand violated. The original adjudicating authority took into consideration the fact that the NIDB Data as also the weekly average of rough marble blocks of Turkish origin showed the value of the goods as USD 350.88 per MT. Accordingly, he held that the appellant had undervalued the goods and enhanced the value to USD 350.88 per MT. He further observed that as the appellant had not fulfilled the condition of the notification, the goods are liable to confiscation and the appellant liable to penalty. Accordingly, along with enhancing the assessable value he confiscated the same with an option to the appellant to redeem the same on payment of redemption fine of Rs. 5.40 lakhs. In addition penalty of Rs. 1 lakh was imposed upon the appellant in terms of the provisions of section 112 (a) of the Customs Act 1962.
3. On appeal against the above order the Commissioner (A) upheld the same. Hence the present appeal.
4. As regards valuation of the goods, it is seen that the Revenue has enhanced the value based upon the NIDB data as also on the weekly average prices, adopted from the other relevant ports. The appellant's contention is that the prices of rough marble blocks keeps on changing as the market in respect of the same is very volatile. They further submit that NIDB data cannot be adopted as the ground for enhancement of the value. Similarly the average weekly price of the goods imported at different ports cannot be adopted.
5. We find that an identical dispute was the subject matter of the Tribunal's decision in the case of R.K. Marble Pvt. Ltd. Vs. CCE Jaipur MANU/CE/0027/2007 : 2009 (245) ELT 383 (Tri-Del), and the enhancement of the value based upon the weekly average price was held as bad in law. We find that though the said decision was placed before the Commissioner (A) and he has also taken note of the same but has distinguished the said decision on the ground that in the present case the appellant has not been able to establish that there was reduction in international price during the material time. We find that such distinction made by Commissioner (A) is neither warranted nor justified in as much as the onus to prove that the import was undervalued lies upon the Revenue. In the present case also we find that it is the weekly average price of the goods which has been adopted as the assessable value, which was the case in the appeal of R.K. Marble Pvt. Ltd. As such there is no distinction between the two and the........