Viva International vs Commissioner of Customs, Delhi>2004(10)LCX0260

2004(10)LCX0260

IN THE CESTAT, NORTHERN BENCH, NEW DELHI

Ms. Jyoti Balasundaram, Vice-President and Shri V.K. Agrawal, Member (T)

VIVA INTERNATIONAL

Versus

COMMISSIONER OF CUSTOMS, DELHI

Final Order Nos. 138-141/2005-NB(A), dated 28-10-2004 in Appeal Nos. C/433-436/2004-NB(A)

REPRESENTED BY : Shri Naveen Mullick, Advocate, for the Appellant.

Shri S.M. Tata, SDR, for the Respondent.

[Order per : V.K. Agrawal, Member (T)]. - In these four appeals, filed by M/s. Viva International and M/s. Tandon Sales Corporation, the issues involved are whether the goods imported by them are classifiable under sub-heading 5806.32 of the First Schedule to the Customs Tariff Act, as claimed by them or under sub-heading 5806.10 as confirmed by the Commissioner (Appeals) and whether the value declared by them is liable to be enhanced.

2. Shri Naveen Mullick, learned Advocate, submitted that both the Appellants imported Velcro Tape (Hook and Loose Tape) from M/s. Canwin Enterprises Ltd., Taiwan Branch; that the Department has arbitrarily changed the classification of the product and enhanced the assessable value of the goods after the clearance of the goods; that the Department vide letter dated 20-12-2001 has treated the goods as woven pile fabrics and sought to enhance the value on the basis of Bill of Entry dated 19-1-2001 of M/s. Fancy Fashions. He, further, submitted that the goods imported by M/s. Fancy Fashions as well as the goods imported by them were not tested as no samples had been drawn by the Department; that the Department has also not furnished them the Bill of Entry of M/s. Fancy Fashions; that thus there is no evidence which can confirm that the goods imported by Fancy Fashions and by them are the same; that no ground has been given by the Department for changing after due application of mind; that the burden of proof in such cases is on the Department which has not been discharged at all.

3. Countering the arguments, Shri S.M. Tata, learned SDR, reiterated the findings as contained in the impugned Order.

4. We have considered the submissions of both the sides. The Appellants have declared their goods imported by them as Velcro Tape and classified it under sub-heading 5806.32 of the Customs Tariff Act. The Revenue has changed its classification to sub-heading 5806.10 on the ground that M/s. Fancy Fashions have also imported the same goods and these were classified as Woven pile fabrics. The Department has not brought on record any material or evidence to show that the goods imported by the Appellants and the goods imported by M/s. Fancy Fashions were same since no chemical test of the impugned product has been got done by the Revenue nor any test report of the fabrics imported by M/s. Fancy Fashions has been brought on record. In absence of any material, it cannot be claimed by the Department that both the products are same. It is settled law that the onus of proof is on the Department for the purpose of classifying a product in any specified heading of the Tariff. The Department has not succeeded in classifying the impugned product under Heading 5806.10. For want of material we hold that the imported goods are classifiable under sub-heading 5806.32 as claimed by the Appellants. As per Rule 3 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 the value of the imported goods shall be the transaction value. Rule 4 of the Valuation Rules defines transaction value which means the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of Rule 9 of the Valuation Rules. The Appellants have also produced the manufacturers invoice for the verification of the Department and the Department has not doubted the veracity of the said invoices. The department has enhanced the assessable value only on the basis of Bills of Entry filed by M/s. Fancy Fashions. We have already held that no material has been brought on record by the Revenue to show that the goods imported by M/s. Fancy Fashions was similar or identical to the goods imported by the Appellants herein. The provisions of Rule 6 of the Valuation Rules become applicable only when the goods are similar. The expression “similar goods” has been defined in Rule 2(e) of the Customs Valuation Rules. According to the said rule, similar goods means, imported goods which have like characteristics and like component material which enable them to perform the same function and to be commercially interchangeable with the goods being valued having regard to the quality, reputation and existence of the trade mark and produced in the country in which the goods being valued were produced and produced by the same person who produce the goods being valued or where no such goods are available, goods produced by a different person. When the goods imported by the Appellants and goods imported by Fancy Fashions have not been compared as no sample of the imports made by all of them have been compared, it cannot be claimed by the Revenue that the requirement of definition of similar goods have been complied with. We, therefore, set aside the impugned Order and allow both the appeals.

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Equivalent 2005 (183) ELT 410 (Tri. - Del.)