2010 (5) TMI 248 - AT - Customs

Appeal- The department issued a show-cause notice for finalising the assessments without the benefit of serial No. 242 of Notification No. 21 /2002-Cus. and, accordingly to demand differential duty of over Rs. 26 crores from the assessee. The proposals and demands were contested. It was in adjudication of this dispute that the Commissioner passed the impugned order, wherein the assessments were finalised as per his best judgment under Rule 8 of the Customs Valuation Rules and, accordingly, differential duty was demanded without the benefit of serial No. 242 of the notification. In the impugned order, it was inter alia observed that Rules 5 and 6 of the Valuation Rules could not be invoked for want of contemporaneous import from the same country-of-origin and at the same commercial level. Held that- Nevertheless, the party failed to claim the benefit of Rules 5 and 6 of the Valuation Rules. It is said that the aforesaid companies were also awarded similar contracts by BSNL at about the same time. If that be so, the appellant could have taken reasonable steps for gathering information as to the nature of goods imported by those parties, the country-of-origin of the goods, the period of import, and the like. The appellant could have gathered such information directly from the department during the course of adjudication of the show-cause notice. The Right to information Act was also at their disposal. At this juncture, they have come up with a belated prayer, which is haphazard too, for a direction to the department to furnish details of the imports made by the afore named companies. This plea cannot be allowed. The application stands dismissed.

Summary

Issues:
1. Application seeking leave to incorporate an additional ground in the memo-of-appeal.
2. Application seeking direction to the department for information on imports made by specific parties.

Issue 1: Application seeking leave to incorporate an additional ground in the memo-of-appeal:

The appellant filed two applications before the Tribunal, one of which sought to include an alternative claim for the benefit of Serial No. 239 of a notification in the memo-of-appeal. The goods in question were imported in 2003, and assessments were provisionally made under a specific entry. The department later issued a show-cause notice for finalizing assessments without the benefit of a particular notification, leading to a demand for differential duty. The appellant sought to incorporate an alternative plea for the benefit of a different serial number in the notification. The Tribunal analyzed the submissions and case law presented. The appellant's argument that the additional ground was a pure question of law was rejected. The Tribunal found that the proposed ground involved a mixed question of fact and law, specifically regarding whether the appellant held a license from the Department of Telecommunications to provide specified services. As the appellant did not satisfy the relevant condition, the Tribunal dismissed the application, emphasizing that it cannot issue futile orders.

Issue 2: Application seeking direction to the department for information on imports made by specific parties:

The second application requested the department to provide information on imports made by certain parties, arguing that these imports would be contemporaneous for the purpose of Customs Valuation Rules. The Tribunal noted that the appellant had ample opportunity during the adjudication process to gather relevant information but failed to do so. The appellant's belated request for details on imports made by other parties was deemed haphazard and dismissed. The Tribunal emphasized that the appellant could have obtained such information directly from the department or through the Right to Information Act earlier. The application was rejected, and the Tribunal scheduled the appeal for final hearing after disposing of both applications.

This judgment from the Appellate Tribunal CESTAT, Mumbai addressed two key issues raised by the appellant regarding incorporating an additional ground in the memo-of-appeal and seeking information on imports made by specific parties. The Tribunal carefully analyzed the arguments, relevant case law, and the facts of the case before dismissing both applications. The decision emphasized the importance of timely and relevant submissions during the adjudication process and highlighted the need to avoid seeking information belatedly through Tribunal applications.