9911796707
TMI Blog1999 (3) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant was entitled to an agent s commission of 2% on all sales of the product mediated by it between Chemexco and the buyer. There is no dispute that the appellant was not getting this commission on goods which it imported directly from Chemexco for stock and further sale. The Department came to know that the appellants entered into a colloboration agreement with Hoechst for manufacture of high density polyethelene in India. The agency agreement for supply of product manufactured by Hoechest for the appellant through Chemexco was already registered with the Special Valuation Branch of the Custom House and that consequent on coming to know of the colloboration for manufacture the records of imports by it were placed under scrutiny. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period during the appellant imported the goods. 3. The Collector in his order, did not accept the contention that the notice was barred by limitation. He said that but for the appellant s failure to declare in the bills of entry that it was a related person, the goods would not have been finally assessed. He found the appellant to be related person with Chemexco in view of the provisions of the agreement between Chemexco and the appellant. Therefore, he said that the price will have to be determined not under Clause (a) of sub-section (1) of Section 14 but under Clause (b) of sub-section read with Clause (a) of Rule 3 of the Valuation Rules for the period prior to 16th August, 1988. He found that for the period after 16th August, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that it was not related person. There was therefore no suppression. 5. The Departmental Representative says that the fact that the appellant not shown in the declaration that it was a related person shows that it suppressed the fact of relationship and that extended period of limitation would be available, notwithstanding the fact that the Department may have been aware earlier of the agent. 6. Paragraph 5 of the notice invoking the extended period which reads as follows : It was found that M/s PIL did not declare their relationship with M/s. CHEMEXCO in the Bill of Entry listed in the Annexure II and cleared all the consignments on final assessment basis. When M/s. PIL had an agency agreement with M/s. CHEMEXCO and were well awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. I/We am/are not connected with the suppliers/manufacturers as :- (a) Agent/distributor/indenter/Branch/subsidiary/concessionaire, and (b) Collaborator entitled to the use of the trade mark, patent or design , (c) Otherwise than as ordinary importers or buyers." The importer is required to strike out whatever is inapplicable. From the notice, it appears that the appellant had struck out the first two clauses, but not struck out the third and had also scored out the word not in the first line. It had, in effect, said that it was connected with the import otherwise than as an ordinary importer. Therefore, it says that the agent otherwise than as ordinary importers or buyers. We do not think possible to accept that the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he supplier. Rendering brand information or any assistance in protecting in the matter of patent and proprietory rights does not establish a commercial relationship between the two parties. The fact that conditions of sale prescribed by the supplier had to be intimated to the buyer is in accordance with the note of commercial practice and had no special significance. Therefore, a plain reading of the agreement does not convince us that the two persons to have been related according to Section 14, as it then stood, has to be the mutuality of interest to each other. We do not see how mutuality of interest is established in the clauses of the agreement. The contention, emphasised by the departmental representative, that the increase in the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however does not go on the basis that 2% commission has to be added. It says that the price charged to the appellant is less by 11.2% that for the other independent importers. It said that in the case of third party imports appellant gets agency commission of 2% which is included in invoice price, whereas in the case of import by it the agency commission is not included in the invoice price. Thus, benefit in price in excess of the 2% has also been given as difference in various cases is as much as up to 2% (emphasis ours). The last sentence, it appears to us, says that it is only the difference in price which is in excess of 2% paid as agency commission which is as much as up to 11.2% and it is propose to add to the value of imports. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
