2011 (3) TMI 315 - HC - Customs

Pre-deposit - By a show cause notice dated 14 05 2004, the Office of the Commissioner of Customs & Central Excise, Aurangabad called upon the petitioner to show-cause as to why the petitioner should not be held liable for service tax for receiving technical services on payment of US 45 million in instalments as per TTA dated 01-10-2001 - Cost sheet relating to imports found during the course of search shows that US 1000 has been shown as lumpsum payment - Once that amount is capitalized while allocating depreciation for the purpose of costs of the car assembled, automatically the amount paid towards TTA gets allocated to a car - As regards the financial hardship, the Tribunal took note that the petitioner had cash and bank balance of more than Rs.127 crores as on 31 12 2009 and sundry debtors had to pay about more than Rs.75 crores Similarly, the argument that the petitioner is entitled to CVD amounting to Rs.38.5 crores and, therefore, the petitioner cannot be subjected to pre deposit is also unacceptable, because, taking credit would arise only when the duty is paid - n the present case, it is the case of the Revenue that the amount of US 45 million paid to Skoda under the Technology Transfer Agreement was in fact part of the value of 45,000 car kits supplied by Skoda to the petitioner from time to time and that amount has been recovered from the customers by adopting different accounting methods - The writ petition is dismissed - However, the time to deposit the amount of Rs.30.00 crores is extended by further period of six weeks from today

Summary

Issues Involved:
1. Legality of the pre-deposit order by the CESTAT.
2. Inclusion of US$ 45 million in the value of imported car kits.
3. Financial hardship and pre-deposit amount.
4. Provisional assessment and credit of CVD.

Issue-wise Detailed Analysis:

1. Legality of the pre-deposit order by the CESTAT:
The petitioner challenged the CESTAT's order dated 12-05-2010, which directed a pre-deposit of Rs. 30,00,00,000/- for entertaining an appeal against the order-in-original dated 04-03-2009. The petitioner argued that the GATT valuation cell had previously determined that the US$ 45 million paid to Skoda was not related to the value of the car kits imported. The Tribunal, however, found prima facie evidence suggesting that the payment was intended to evade customs duty, thus justifying the pre-deposit order.

2. Inclusion of US$ 45 million in the value of imported car kits:
The Commissioner of Customs included the US$ 45 million paid to Skoda as part of the value of the imported car kits, confirming a duty of Rs. 97,15,00,054/- and an equivalent penalty under Section 114A of the Customs Act, 1962. The petitioner contended that this amount was for technical assistance and not related to the car kits' value. The Tribunal, however, found evidence suggesting that the payment was linked to the car kits, including cost sheets and work-sheets indicating that US$ 1000 per car kit was part of the lumpsum payment.

3. Financial hardship and pre-deposit amount:
The petitioner argued that the Rs. 30 crores pre-deposit was excessive, especially since Rs. 42 crores had already been recovered during the investigation, and Rs. 11.54 crores had been paid as service tax. The Tribunal noted that the petitioner had significant financial resources, including cash and bank balances of over Rs. 127 crores and sundry debtors of more than Rs. 75 crores. The Tribunal deemed the pre-deposit amount reasonable, given the circumstances.

4. Provisional assessment and credit of CVD:
The petitioner claimed that Rs. 23.5 crores of the confirmed demand related to provisionally assessed goods, arguing that duty on these goods could not be recovered until assessments were finalized. The Tribunal dismissed this argument, stating that duty could be recovered if goods were cleared by suppressing material facts and undervaluation. The petitioner also argued for credit of CVD amounting to Rs. 38.5 crores, but the Tribunal held that credit could only be taken once duty was paid. The Tribunal found that the US$ 45 million paid to Skoda was part of the car kits' value and had been recovered from customers using different accounting methods.

Conclusion:
The High Court dismissed the writ petition, finding no merit in the petitioner's arguments. The Tribunal's order directing the pre-deposit of Rs. 30 crores was upheld, with an extension of six weeks for the deposit. The Court concluded that the petitioner's arguments regarding the inclusion of US$ 45 million, financial hardship, provisional assessment, and CVD credit were not convincing.