2011 (4) TMI 957 - AT - Customs

Transaction value - higher value - Commissioner (Appeals) has observed that no evidence of imports at higher value at the material time has been indicated nor any evidence has been produced to contradict the statements of the respondents that no agency agreement existed between them and the foreign supplier - Department has relied on the assessee s letter in which they have stated that they are getting 10% commission on FOB value on the imports made through them - Neither this letter nor other case records are available with the Department, in absence of documentary evidence, Revenue can not find fault in the impugned order, no merits in the appeal filed by Revenue and accordingly dismissed

Summary

Issues:
1. Loading of value on imports under Customs Valuation Rules, 1963.
2. Violation of principles of natural justice in the order-in-appeal.
3. Maintainability of the order by the Commissioner (Appeals).
4. Rejection of transaction value based on lack of evidence of imports at higher value.
5. Challenge by the department on the grounds of lack of documentary evidence.

Analysis:

1. The case involved the examination of imports by the respondents from foreign suppliers, where the value was ordered to be loaded by 10% and 7% under the Customs Valuation Rules, 1963. The Collector (Appeal) found a gross violation of natural justice due to lack of disclosed evidence for the loading of 10% over the invoice value. Subsequently, the Asst. Commissioner passed an order holding loading of 10% for imports from three suppliers prior to a specific date, and similar loading for imports from the fourth supplier before another date.

2. The respondents appealed against the Asst. Commissioner's order, leading to the Commissioner (Appeals) setting it aside as non-maintainable. The Commissioner observed the absence of evidence indicating higher import values at the material time and the lack of proof contradicting the absence of an agency agreement between the respondents and the foreign supplier. Moreover, the Commissioner highlighted the ambiguity regarding the application of old or new Valuation Rules in the decision-making process.

3. The department challenged the Commissioner (Appeals) order before the Tribunal, arguing that the absence of evidence of higher value imports should not be the sole reason for rejecting the transaction value. The department relied on a letter from the assessee mentioning a 10% commission on FOB value for imports, which was not considered by the Commissioner (Appeals). However, the letter and other case records were not available with the department, and the reliance on it at a later stage was deemed inappropriate due to the lack of documentary evidence.

4. The Tribunal found no merits in the appeal by the Revenue, leading to the dismissal of the same based on the lack of documentary evidence to support the department's challenge against the Commissioner (Appeals) order.