2011 (2) TMI 558 - AT - Customs

Demand - Higher assessable value - Imported Non Calcinated Petroleum Coke - the appellant has a good prima-facie case - Otherwise also we note that there is virtually no evidence on record rejecting the invoice value of the appellant except the so called contemporaneous imports - In these circumstances, we are of the view that the directions to pre-deposit a part amount by the appellate authority were not justified - Decided in favour of assessee.

Summary

Issues:
- Dismissal of appeals for non-compliance with deposit condition
- Higher assessable value of imported Non Calcinated Petroleum Coke
- Contemporaneous import comparison
- Applicability of Supreme Court judgment on valuation rules
- Justification of pre-deposit amount
- Lack of evidence on record
- Remand for decision on merits without pre-deposit

Analysis:

The judgment by the Appellate Tribunal CESTAT, Ahmedabad, involved the dismissal of appeals due to non-compliance with a deposit condition set by the Commissioner (Appeals). The Commissioner had directed the appellant to deposit Rs.50 lakhs as a condition for the hearing of their appeal, related to a duty confirmed against the appellant amounting to around Rs.70.43 lakhs for imported Non Calcinated Petroleum Coke at a higher assessable value based on contemporaneous imports.

Regarding the comparison of contemporaneous imports, the appellants argued that the other import was not truly contemporaneous due to differences in contract dates, import quantities, and payment terms. Despite acknowledging the argument's validity, the appellate authority still directed the appellant to pre-deposit the specified amount.

The appellant's advocate contended that the reliance on a Supreme Court judgment from 1998 by the appellate authority was inappropriate, as subsequent Tribunal decisions had deemed it inapplicable after the introduction of new valuation rules. The Commissioner, however, maintained that the judgment would apply only if the adjudicating authority's decision violated the Act or earlier valuation rules.

The Tribunal found the Commissioner's reasoning for the pre-deposit unjustified, noting the lack of evidence rejecting the appellant's invoice value besides the contemporaneous imports. Consequently, the Tribunal set aside the order and remanded the matter to the Commissioner for a decision on merits without requiring any pre-deposit.

In conclusion, the Tribunal disposed of the early hearing application, stay petition, and appeal in the mentioned terms, emphasizing the need for a fair consideration of the appellant's case without insisting on a pre-deposit amount.