2013 (11) TMI 699 - AT - Customs

Stay application - Exemption available to STPI unit - Under valuation of goods - Demand of differential duty - Held that - assessee is not serious about challenging the orders passed against them. May be, they are content with the exemption available to STPI unit. Before us, they have asserted that, given an opportunity, they can demonstrate a case for setting aside the loading ordered by the SVB. It has been claimed that, given an opportunity, evidentiary materials can be brought on record. Nevertheless, no evidence is forthcoming, nor even a feeble attempt has been made to demonstrate the so-called case of the appellant. Much was argued about the policy of the supplier, but nothing was pleaded before the Deputy Commissioner (SVB). It appears, this plea was made for the first time before the learned Commissioner (Appeals), who appears to have considered it and rejected it. In the appeal and stay application before us, the point is sought to be made emphatically. In fact, the main grievance of the appellant is said to be one based on the supplier s pricing policy. But this grievance prima facie has not been substantiated. In this view of the matter, we are not inclined to stay the operation of the impugned order. In taking this view, we have also considered the assessee s conduct. Admittedly, the SVB s decision has effect till November 2013. Two-thirds of the period of validity of the SVB s order has elapsed. There is no evidence of the assessee having taken any step before the lower appellate authority for any stay. The present attempt seems to be haphazard. The exemption available to STPI units is yet another factor which makes the assessee take the matter in a light vein. With such conduct, the assessee cannot claim to get an order of stay - Stay denied.

Summary

Issues:
1. Stay of operation of the impugned order regarding valuation of imported goods.
2. Consideration of amended pricing policy of the supplier.
3. Allegation of arbitrary valuation and lack of opportunity to adduce evidence.
4. Sequential application of Customs Valuation Rules.

Analysis:

1. The appellant sought a stay of the impugned order concerning the valuation of imported laptops, desktops, and computer equipment. The order by the Deputy Commissioner of Customs imposed a loading on the invoice price based on the relationship between the importer and the supplier, Google Inc., USA. The loading ranged from 20% to 41.125% depending on the type of value indicated in the invoices. The appellant contended that the loading was prejudicial, especially considering their three STPI units. However, the Tribunal noted the lack of serious challenge by the appellant against the orders, indicating contentment with the STPI unit exemption. Despite claims of being able to present evidence to set aside the loading, the appellant failed to provide any substantiation or new evidence, leading to the rejection of the stay application.

2. The appellant argued that the amended pricing policy of the supplier, not considered during the valuation, would have influenced the decision significantly. They highlighted that the amended policy included indirect costs in estimating Material Over Heads (MOH), making a separate addition towards freight unwarranted from April 2008. However, the Tribunal observed that this argument was not presented before the lower authorities in the same manner as before them. The lack of evidence or effort to demonstrate the case effectively weakened the appellant's position, ultimately leading to the rejection of the stay application.

3. Allegations of arbitrary valuation and lack of opportunity to adduce evidence were raised by the appellant. They claimed that the valuation ordered by the SVB was arbitrary and lacked a rational basis. Additionally, they asserted that the Deputy Commissioner (SVB) did not provide a reasonable opportunity to present evidence. Despite mentioning entitlement to exemption under Notification No. 52/2003-Cus. for most imports, the appellant failed to substantiate their grievances adequately, contributing to the rejection of the stay application.

4. The appellant contended that the Customs Valuation Rules were not sequentially followed, with the Deputy Commissioner (SVB) directly applying Rule 9 for valuation. However, the Tribunal noted that the appellant's counsel failed to provide a detailed elaboration on this point. The lack of substantial argument or evidence regarding the sequential application of the rules weakened the appellant's case, further supporting the rejection of the stay application.