2015 (3) TMI 199 - AT - Customs

Validity of review order - bar of limitation - Power of Commissioner to remand the matter - Held that - In the appeal filed by the department, the date of receipt of the order is mentioned as 26.8.2011 and the review order has been passed by the Commissioner on 25.11.11 which is within the three months period prescribed under the law. In view of this position, we do not find that the contention of the appellants is correct and hold that the appeal has been filed within the time limit. - Commissioner (Appeals) has not remanded the matter back to the original authority but has set aside the order of the original authority as not proper. In view of this position, the contention of the appellants also holds no water. As far as the appellants' submission on merits are concerned, we find that the original authority has not discussed implications of various expenditure incurred by the appellants in relation to technical assistance and management service fee, IT Infrastructure fee, Brand Sharing cost, Business Promotion Expenses and Training Expenses as also certain other remittance made to their principals. The original authority must discuss each of these expenses and come to his finding whether any of these expenses have affected invoice value of the goods being imported after going through various agreements relating to such remittance as also examining various agreements relating to such remittance as also examining various invoices against which the payments have been made. The last contention of the appellants is that they are paying service tax on some of these activities and therefore, no customs duty can be charged. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Barred by limitation of time for review order
2. Power of Commissioner (Appeals) to remand the matter
3. Nexus of expenditure to import value under Customs Valuation Rules
4. Impact of paid service tax on customs duty levied

Analysis:

Issue 1: Barred by limitation of time for review order
The appellants argued that the review order passed by the Commissioner of Customs under Sec. 129D(2) of the Customs Act was time-barred. They claimed that the review order dated 4.8.2011 was issued on 9.8.2011, while the review order was passed on 25.11.2011, exceeding the time limit. However, the tribunal found that the review order was issued within the three-month period prescribed by law, as the date of receipt of the order was mentioned as 26.8.2011, and the review order was passed on 25.11.2011, thus rejecting the contention of the appellants.

Issue 2: Power of Commissioner (Appeals) to remand the matter
The appellants contended that the Commissioner (Appeals) did not have the power to remand the matter back to the original adjudication authority, citing an earlier judgment. However, the tribunal noted that the Commissioner (Appeals) had not remanded the matter but had set aside the order of the original authority as improper. Therefore, the tribunal held that the appellants' argument regarding the power of remand was not valid.

Issue 3: Nexus of expenditure to import value under Customs Valuation Rules
The appellants claimed that certain expenditures incurred by them had no nexus to the import value of the goods under the Customs Valuation Rules. They detailed various activities for which expenses were made and argued that these expenses should not be added to the value of imported goods. The tribunal directed the original authority to examine each expenditure in detail, considering related documents like agreements and invoices, to determine if any of these expenses affected the invoice value of the imported goods.

Issue 4: Impact of paid service tax on customs duty levied
The appellants argued that since they had already paid service tax on certain activities, no customs duty should be levied on the same expenditures. However, the tribunal clarified that the examination of expenses for customs duty purposes is distinct from service tax obligations. They rejected the appellants' contention, emphasizing that the customs duty assessment is based on whether the expenditures form part of the assessable value of the imported goods.

In conclusion, the tribunal remanded the matter back to the original authority for a detailed examination of the expenditures and their impact on the import value of goods. The appeal was disposed of accordingly.