2018 (11) TMI 313 - AT - Customs

Rectification of mistake - valuation of imported goods namely, Phenol - price of contemporaneous import made by C.G. Shah Co - Held that - It is observed that the quantity of goods in case of applicant and in case of Overseas Polymer which was adopted by the department are different. The quantity imported by the applicant is much higher than that of overseas polymers. This fact is also very vital for the conclusion of the valuation by the department - the vital facts of contemporaneous imports as discussed above has not been properly considered by the lower authority in the impugned order which was upheld by this Tribunal in TOTO, therefore, there is an apparent error in the order of this Tribunal. Time Limitation - delay in filing ROM - Held that - Undisputedly the appellant after passing the final order by the Tribunal approached to Hon ble Supreme Court as statutory remedy by filing a Civil Appeal. However, on realizing that there is an error in the order, they decide to file ROM before this Tribunal, accordingly, the civil appeal was withdrawn - In these circumstances, the period of pendency of civil appeal before the Hon ble Supreme Court will stand excluded from the limitation provided for filing ROM, if any, therefore, it cannot be said that there is a delay in filing the ROM. Since the adjudicating authority has not given proper finding on the other contemporaneous import of C.G. Shah Co as well as no finding was given on Rule 5 of Customs Valuation Rules, the matter needs to be re-considered - matter remanded to the assessing authority for re-consideration of the valuation - appeal allowed by way of remand.

Summary

Issues Involved:
Rectification of mistake in the final order regarding the valuation of imported goods (Phenol) under Rule 4(2) of the Customs Valuation Rules, 1988.

Analysis:
The appellant filed a miscellaneous application seeking rectification of a mistake in the final order passed in a Customs appeal regarding the valuation of imported goods, specifically Phenol. The issue at hand was the enhancement of the value of the imported goods from USD 1085 PMT declared by the appellant to USD 1350 PMT by the assessing authority, which was based on the price of contemporaneous imports made by another company. The appellant argued that the Tribunal failed to consider the international price range on the same day and did not provide reasoning for not applying the lower price of USD 1100. The appellant also contended that Rule 5 of the Customs Valuation Rules, which prescribes adopting the lowest of contemporaneous prices, was not followed. The appellant justified the delay in filing the rectification application by referring to a Supreme Court judgment allowing exclusion of time during which the matter was pending before the Supreme Court.

The Revenue, represented by the Superintendent (AR), supported the Tribunal's order, asserting that it was correct and legally sound based on the available facts. The Revenue contended that no rectification was necessary as the order did not contain any errors or deficiencies.

Upon considering the submissions from both sides and reviewing the records, the Tribunal found that there was another contemporaneous import price available at the time of import, which had been accepted by the department. The Tribunal noted that this price should not have been ignored, and highlighted the importance of considering the quantity of goods imported by different entities for proper valuation. The Tribunal also addressed the issue of limitation raised by the Revenue, explaining that the appellant's decision to file a rectification application after withdrawing a civil appeal should not be considered a delay. The Tribunal concluded that vital facts regarding contemporaneous imports and the application of Rule 5 of the Customs Valuation Rules were not properly considered in the previous order. As a result, the matter was remanded to the assessing authority for re-consideration of the valuation, with all issues being kept open. The Tribunal allowed the rectification applications accordingly.

This comprehensive analysis of the judgment highlights the key arguments presented by both parties, the Tribunal's evaluation of the issues raised, and the ultimate decision to remand the matter for re-consideration based on the identified errors in the previous order.