2017 (8) TMI 1399 - AT - Customs

Valuation - FOB contract on export items - whether FOB price can be treated as cum-duty or not? - Held that - The issue regarding treating the FOB price as cum-duty is not in favour of the appellant, as per the ratio laid down by the Tribunal in an order in the case of appellant-assessee, M/s. Essel Mining & Industries v. Commr. of C. Ex, Customs & S.T., BBSR-I 2017 (4) TMI 87 - CESTAT KOLKATA - decided against appellant. Valuation - enhancement of the value of the goods on the basis of contemporary price - Held that - Appellant submits that he can submit reply provided the department will supply contemporary documents to appellant - the department is asked to provide documents pertaining to contemporary rate to the assessee-appellant, and appellant will file reply within a period of 3 weeks thereafter. Appeal decided partly against appellant and part matter on remand.

Summary

Issues involved:
1. Treatment of FOB price as cum-duty.
2. Enhancement of the value of exported goods.

Analysis:
1. Treatment of FOB price as cum-duty:
The appeal was filed against Order-in-Appeal No. 37CUS/BBSR-I/2010, concerning the export of Iron Ore Fines under FOB contracts. The main issue was whether the FOB price could be considered as cum-duty. The appellant contended that the FOB price should not be treated as cum-duty, citing a Tribunal order in a similar case. The Tribunal dismissed this ground based on the previous ruling.

2. Enhancement of the value of exported goods:
Another issue in the appeal was the enhancement of the value of the exported goods. The appellant had exported goods at 95 USD per MT, but the lower authorities valued them at 117.89 USD per MT based on contemporary prices. The appellant argued that the enhancement was arbitrary and done without giving them an opportunity to respond. The Asstt. Commissioner increased the value as the exporter did not reply to the letter. The appellant requested an opportunity to reply with contemporary documents provided by the department.

The Tribunal directed the department to supply contemporary documents to the appellant for a response within three weeks. The adjudicating authority was instructed to decide the issue on merit after providing a reasonable opportunity for a hearing. Both parties were allowed to present fresh evidence. Consequently, the appeal was partly allowed under the specified conditions.