Order date – 12 December 2022

Facts –

• The Appellant, M/s. Surya Exim Limited and others, had imported 400.5 MTs Suspension grade PVC Resin Off Grade/ Wet Venilen 140/145/150 imported from Venezuela and filed Bill of entry dated 11.03.2010.
• On a scrutiny of the said bill of entry, it appears that the imported PVC Resin is off “prime grade” and not of “off grade” as declared by the Appellant. Accordingly show cause notice was issued proposing to demand differential duty, as also to confiscate the goods under Section 111(d) and (m) of the Customs Act for misdeclaration of description and value and to impose penalty on them under Section 112(a) and 114A of the Act.
• Being aggrieved the appellant had filed an appeal

Issue –

• Whether the goods Suspension grade PVC Resin imported by the appellant is Prime grade as contended by the department or “wet/off grade” as claimed by the appellant?

Order –

• The Tribunal finds that the appellant had requested for cross-examination of the Chemical Examiner. However, no such opportunity was granted to them. In the present proceeding the Test reports are the only evidences with the Revenue to say that imported goods are “Prime Grade”, therefore, adjudicating authority was not right in rejecting the cross-examination of the chemical examiner.
• Also find that the test report states that the goods are not as declared as in the Bill of Entry or that they are not “PVC Resin Off Grade”. The said test report has simply given an opinion on composition of the goods. In the circumstances, it is not correct to allege mis-declaration of the goods in question on the part of the appellant.
• Further, there is no evidence that the appellant and overseas supplier are related parties or that the invoice value was not the transaction value. The Department has failed to show any contemporaneous evidence of higher price, and thus the transaction value cannot be rejected, as held by the Hon‟ble Apex Court in Commissioner Central Excise v. Sanjivani Non- Ferrous Trading Pvt. Ltd. - (2019) 2 SCC 378 = 2019 (365) E.L.T. 3 (S.C.)
• It also observed that for any enhancement in assessment value, the transaction value has to be first rejected based on legal permissible ground as indicated in the valuation Rules. We find that in the present matter, Revenue has not advanced any such evidence to support their case inasmuch as, no evidence of rejection of transaction value was produced by the department.
• The Tribunal finds that the quality of the goods, obviously the price cannot be the same of the prime grade material. Hence the price negotiated and finalised as sale price between the supplier and the appellant importer and declaration of the same cannot be disputed.
• The Tribunal finds that NCLT order submitted by the appellant whereby a resolution plan was approved under the IBC proceeding and the judgment of Apex Court in the case of Sundaresh Bhatt, in Civil Appeal No. 7667 of 2021, the dues of the Government, including the present dues, if any, is not prima facie recoverable. However, since this appeal on its merit and fact of the case, the tribunal does not incline to give conclusive finding on the basis of NCLT order.