2013 (8) TMI 395 - AT - Customs

Waiver of pre deposit of penalty u/s 114A and 114AA redemption fine u/s 125 - stay application Held that - The SRFR products were imported to meet warranty obligations and were not meant for resale - all the expenses incurred by the assessee for import of products were reimbursed by the supplier - These reimbursements were in addition to the funding discount claimed on SRFR imports - funding discount was applicable only to complete products meant for resale and not permissible in respect of SRFR products which were not meant for resale - against the demand of duty in respect of SRFR products HP (India) had not made out a prima facie case - HP (India) misdeclared the value of the goods and also suppressed vital facts with intent to evade payment of appropriate duty of customs - the extended period of limitation had been rightly invoked in this case 120 crores were asked to be submitted as pre deposit after such submission rest of the pre deposit was ordered to be waived decided partly in favour of assessee.

Summary

Issues Involved:
1. Waiver of predeposit and stay of recovery for customs duty, penalties, and redemption fines.
2. Consideration of final written submissions by the adjudicating authority.
3. Validity of declared value of imported goods and additions made to it.
4. Prima facie case for predeposit based on merits and financial hardship.

Issue-wise Detailed Analysis:

1. Waiver of Predeposit and Stay of Recovery:
The appellants, HP (India), filed stay applications seeking waiver of predeposit and stay of recovery for customs duties, penalties, and redemption fines adjudged against them in two separate appeals. In appeal No. C/1932/2012, the demands included Rs. 925.4 crores as customs duty, penalties under Sections 114A and 114AA, and a redemption fine under Section 125 of the Customs Act. HP (India) paid Rs. 95 crores during investigations and Rs. 50 crores after filing the appeal, seeking waiver for the balance amount. In appeal No. C/2027/2012, HP (India) challenged demands totaling Rs. 36.70 crores in customs duty, with penalties and redemption fines, having already paid the duty and part of the penalty.

2. Consideration of Final Written Submissions:
The appellants questioned the propriety of the orders passed by the Commissioner, alleging that their final written submissions were ignored, leading to a violation of the principles of natural justice. The Commissioner passed Order-In-Original No. 2/2012 and No. 4/2012 without considering the final written submissions filed by the assessee. However, the tribunal decided not to remand the case as the orders dealt with the substantive issues in detail.

3. Validity of Declared Value of Imported Goods and Additions Made to It:
HP (India), a subsidiary of HP (USA), imported IT products from HP (Singapore) and resold them in India. The Commissioner confirmed a duty demand of Rs. 925.40 crores, rejecting the declared value based on the Global Pricing Policy (ROVAC) and making additions for various elements like international freight & insurance, MRP products, customs duty/cum-duty treatment, warranty costs, trade discounts, overfunding, and SRFR products. The tribunal found that the declared CIF value included freight & insurance and that there was no evidence of resale at prices higher than MRP. Therefore, no predeposit was required for these elements. However, for warranty costs, trade discounts, and SRFR products, the tribunal found the Commissioner's findings reasonable, necessitating a predeposit for these items.

4. Prima Facie Case for Predeposit Based on Merits and Financial Hardship:
The tribunal noted that HP (India) deviated from their global pricing policy, leading to undervaluation and short-payment of duty. The Commissioner's detailed examination and findings on trade discounts, warranty costs, and SRFR products were found prima facie acceptable. The plea of limitation was also considered, with the Commissioner rightly invoking the extended period of limitation due to misdeclaration and suppression of facts by HP (India). The tribunal directed HP (India) to predeposit Rs. 120 crores within seven weeks, with waiver and stay of recovery for the balance amount and penalties upon compliance. The same reliefs were granted for the functionaries of the company.

Conclusion:
The tribunal granted partial relief by waiving the predeposit for certain elements while directing HP (India) to deposit Rs. 120 crores for others. The orders of the Commissioner were upheld in terms of the detailed examination of the pricing policy deviations and the additions made to the declared value. The principles of natural justice were considered, but the substantive issues were found to be adequately addressed in the original orders.