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TMI Blog2010 (5) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. The assessments were made provision ally. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f providing basic telephone service, cellular mobile telephone service value added services vai V-SAT system or Internet service 4 It is submitted that only a person licensed by the DOT of the Government of India for the purpose of providing any of the said services can claim the benefit of concessional rate of duty under serial No. 239 of the notification in respect of the goods specified in list 22, required for basic telecom service, cellular mobile telephone service etc. it is submitted that, the appellant had no such licence from the DOT and hence it is not open to them to claim the benefit of serial No. 239 ibid. Learned special consultant submits that, if this application is allowed, the Tribunal will invariably be burdened with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial consultant for the Revenue, it would be futile for the appellant to get the proposed additional ground to be incorporated in the memo-of-appeal inasmuch as it is not their case that they satisfied the relevant condition attached to serial No. 239 of the notification. As rightly pointed out by the special consultant, any pure of question of law is not involved in the proposed ground. What is involved therein is apparently a mixed question of fact and law. Whether the appellant held a licence from DOT to provide any of the services specified under condition No. 47 ibid is a question of fact. Only if this question is answered in the affirmative can this Tribunal entertain the plea for the benefit of the notification. The factual questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, this Court entertaining an additional ground, involving a pure question of law, but on facts at hand, in the light of the findings of the Settlement Commission, based on documentary evidence that the goods in question imported by the appellant were actually sold by them to M/s. Elektronik Lab, before these were used for repair of ocean-going ships, it cannot be held that the additional ground did not involve any investigation into facts The party had earlier pleaded that the goods imported by them were abused as ship spares for repair and maintenance of ocean-going vessels. It was, however, found that they had actually sold the goods before they could be used for such repairs. After noting these facts, the Apex Court sustained the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present prayer of the appellant. Admittedly, the relevant show-cause notice was issued for finalising provisional assessments. Abundant opportunity was available to the assessee to contest the Revenue's proposal to finalise the assessments without grant of benefit of the notification. A detailed enquiry as envisaged under Section 18 of the Customs Act was in place. 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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