http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  5580-81 of 1999

PETITIONER: Commissioner of Customs, Chennai

RESPONDENT: Adani Export Ltd. & Anr.

DATE OF JUDGMENT: 13/04/2004

BENCH: N Santosh Hegde, B N Agrawal & Dr.A.R.Lakshmanan.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       These appeals are preferred by the Commissioner of  Customs, Chennai, against an order made by the Customs, Excise  and Gold (Control) Appellate Tribunal, South Zonal Bench at  Madras (the Tribunal). The short question that arises for our  consideration in these cases are whether the Tribunal was justified  in allowing duty credit at a rate claimed by the respondent under  the Passbook Scheme in regard to the import of Vitamin Mixes in  favour of the respondent by reversing the order of the Assistant  Commissioner of Customs, Chennai, dated 5.2.1998 and accepting  the order of the Commissioner of Appeals ?          The Assistant Commissioner of Customs by his order dated  5.2.1998 held that the value accepted by the Department at US $  8.2 per kg. for Vitamin Mix imported for the purpose of passbook  credit against the exports made of prawns and fish products is  correct, hence, he rejected the claim of the respondent for fixing  the said value at US $ 36 per kg. In an appeal filed by the  respondent herein, the Commissioner of Customs (Appeals),  Chennai, by his order dated 15.4.1998 allowed the same, setting  aside the order of the Assistant Commissioner and held that the  claim for credit at US $ 36 per kg. made by the respondent for the  said import was justified from the evidence produced by the  parties, hence, granted the relief sought for by the respondent. In  an appeal filed by the Department before the Tribunal, as stated  above, the Tribunal accepted the view of the Commissioner of  Appeals while dismissing the appeal of the appellant herein.         Mr. Raju Ramachandran, learned Additional Solicitor  General strenuously contended that the Appellate Commissioner  and the Tribunal erroneously shifted the onus on the Department to  establish the value of Vitamin Mixes imported, by coming to the  conclusion that the Department has not established that the  evidence produced by the respondents, was not creditworthy, thus  erroneously shifted the burden on the appellant. He contended that  the Assistant Commissioner based on similar imports made by  other parties had correctly come to the conclusion that the value of  the Vitamin Mixes  imported at the relevant time was only US $  8.2 per kg. He also contended that the Assistant Commissioner  while coming to the said conclusion justly relied upon the  publication made by the Marine Product Export Development  Authority (MPEDA) which indicated what would be the active  ingredients in the Vitamin Mixes imported by such importers and  came to the conclusion that the price of American Dollars 8.2 per  kg. was the correct price.           Mr. Ashok H. Desai and Mr. Dushyant Dave, learned senior  counsel, however, controverted the said argument of learned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

A.S.G. and pointed out from the order of the Commissioner of  Customs (Appeals) that the material relied on by the Assistant  Commissioner for arriving at the conclusion that the value of the  imported goods was only US $ 8.2 per kg. was not based on  similar importation of Vitamin Mixes as was involved in the  import relied on by the respondent. They also pointed out that the  material relied upon by the Assistant Commissioner did not pertain  to the imports made by any of the suppliers of Shrimps to the  respondents. They placed strong reliance on the judgment of this  Court in Collector of Customs, Bombay vs. Swastic Woolens (P)  Ltd. & Ors. (1988 Suppl. SC 796) to contend this Court has always  treated the Tribunal as the final forum on facts and further relied  on a judgment of this Court in West Bengal Electricity Regulatory  Commission vs. CESC Ltd. (2002 8 SCC 715) to contend that  unless the finding of fact of such forum is perverse or not based on  material-on-record, this Court would not interfere with such a  finding of fact.         Having noticed the arguments of the parties, it is clear that  the issue before us is one of fixation of value on imported Vitamin  Mixes, credit for which is sought by the respondents. While the  Department contends that the same is worth only 8.2 US $ per kg.,  the respondents claim that the same is worth US $ 36 per kg. From  the above contested dispute, it is clear that the issue is one of fact  and not involving a question of law and which will have to be  adjudicated on the material produced by the parties.         While the Assistant Commissioner relied on the importation  price paid for by some similar importers, the Appellate  Commissioner as well as the Tribunal chose to rely upon the  document produced by the respondent though of a single import.  The Appellate Commissioner and the Tribunal in this regard came  to the conclusion that the material produced by the respondents  was more proximate for deciding the issue in question rather than  the material relied upon by the original authority. The Tribunal and  the Appellate Authority also came to the conclusion that the  quality of import of Vitamin Mixes made by various importers on  whose importation value the original authority relied upon, was not  of a comparable quality because the chemical composition of such  goods widely differed from the chemical composition of goods  imported and relied on by the respondent, hence, they held it  would not be correct to rely upon such incomparable material to  fix the disputed valuation. The Tribunal also noticed from the  analysis placed on record that the difference between the two types  of imports representing 2 different costs of importation was very  wide and certainly not marginal but the vitamin ingredients used in  the Vitamin Mixes imported by the two parties are not the same,  therefore, it came to the conclusion that when there is such a wide  difference in the use of active ingredients in the products imported,  same cannot reflect the true value of the products in question  unless such imports are of the same quality. Therefore, the tribunal  thought it safe to rely on the evidence showing the value of  Vitamin Mix which was used in the production of prawn exported  by the respondent.         The Tribunal also considered a letter written by the MPEDA  which had stated that : "As regards the concentration/percentage of  Vitamin Mixes for preparation of shrimps  feed, it is difficult to give the exact details  and vary according to the  brands/manufacturer/feed formulae and  types of feed."

       From the above also, it is clear that concentration/percentage  of Vitamin Mixes for preparation of Shrimps feed differs from  brands/manufacturer/feed formulae and types of feed, therefore,  the safest material to rely upon would be the actual importation of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

cost incurred on that type or category of Vitamin Mixes used in the  preparation of Shrimps feed by the supplier of Shrimps and fish  products to the respondent. Since such material was available and  the same was relied upon by the Commissioner (Appeals) and the  tribunal, we do not find any reason to interfere with the same.         From the above discussion, it is clear that the Tribunal has  applied its mind to the material available on record and on that  basis came to the conclusion that the value fixed by the  Commissioner of Appeals was a just value. We are unable to agree  with the contention advanced on behalf of the appellant that the  finding as to the valuation made by the Tribunal either suffers from  any perversity or is not based on the material-on-record calling for  our interference.         For the reasons stated above, these appeals fail and the same  are hereby dismissed.