per : Archana Wadhwa, Member (J)]. - Being aggrieved by the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.

2. We have heard Shri Amresh Jain, learned DR for appellant and none appeared for the respondents.

3. The dispute involved in the present appeal relates to assessable value of the imported mix ball bearing of China origin by the respondents. As the assessing authority did not agree with the assessable value declared by the importer, he enhanced the same. On appeal, Commissioner (Appeals) has held in favour of the respondents on the following grounds :

that the department loaded the value without giving the (i) reason;

that there is no expert opinion or any import by another (ii) importer as evidence for enhancing the value and;

that the department has not (iii) adduced even an iota of evidence to reject the transaction value on the ground that it is not the true commercial value of the goods.

4. The contention of Revenue is that to make uniformity in assessment of ball bearing imported from China at all the ports, the Commissioner of Customs (Import), Mumbai issued Guidelines vide F.No. S/26-757/97-VA dated 12-12-2006 which is reproduced below :-

"A minimum cut off price at US $ 1.60 per kg is therefore, felt reasonable and fair. Wherever price list/NIDB data is not available or, even if available, is less than the cut off price, it is proposed to adopt the minimum cut off price for assessment of all imports of ball bearings from China at 1.60 US$ per kg".

5. Thus the Commissioner (Appeals) failed to appreciate the contents of the letter and has misinterpreted the directions contained in the letter as the minimum cut off price of US$ 1.60 per kg was to be adopted in only those cases where price list/NIDB data was not available or, even if available was less than the cut off price.

6. It stands submitted by the Revenue that Commissioner (Appeals) was not correct in observing that assessing authority has not given any reason to enhance the value. They submit that NIDB data supports the Revenue's case. It stands further contended that as per Board's Circular No. 91/2003-Cus., dated 14-10-2003, it is not necessary to issue speaking orders in all cases where the importers agree for enhancement.

7. We find that there is no dispute that the customs has power to reject the transaction value and enhance the assessable value in terms of Customs Valuation Rules. However, such rejection of transaction value and enhancement of assessable value has to be on the basis of some evidences on record. Contemporaneous imports have to be considered in reference to quality, quantity and country of origin with the imports under consideration. It has been held in a number of decisions that NIDB data cannot be made the basis for enhancement of value. Commissioner (Appeals) has relied upon various decisions of the Tribunal for holding any enhancement in assessment value, the transaction value has to be first rejected based on legal permissible ground as indicated in the valuation Rules. He has also referred to Hon'ble Supreme Court decision in the case of Eicher Tractors Ltd. v. CC - 2000 (122) E.L.T. 321 (S.C.) in support of his finding that transaction value cannot be rejected without clear and cogent evidence produced by the department with regard to quality, import of origin and place and time of import.

8. We find that in their memo of appeal, Revenue has not advanced any such evidences to support their case. Inasmuch as, no evidence of rejection of transaction value stands produced by the authority, we find no reason to interfere with the impugned order of Commissioner (Appeals). Mere reference to Commissioner Mumbai guidelines to enhance the value of ball bearings, without first assessing the quality of the goods is not justified. It stands accepted that the ball bearings were mix and not of uniform sizes. As such, Revenue's appeal has no merits.

9. In view of the above. Revenue's appeal is rejected.

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