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TMI Blog2004 (1) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... orter s contention that they are not related person of supplier s company who held 20% of the share capital of the appellant s company. He has noted that as per Rule 2(2)(iv) of Customs Valuation Rules, 1988 persons shall be deemed to be related if any person directly or indirectly owns, controls or holds 5% or more of the outstanding stock or shares of both of them. He has noted that it is well settled that any person referred to here is a person other than the importer and the supplier (decision in the case of CC, Mumbai v. Modi GBC Ltd. - 1999 (114) E.L.T. 931 (T). He has noted that, in the instant case, it has not been shown that any third person owns more than 5% of the shares in both the appellant-importer and the supplier s compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange need not be included in the real value if it is proved that the shipper s decision to absorb exchange loss had been reached and the letter announcing it, was despatched before the goods were cleared. The Commissioner has noted that no correspondence was produced to show the negotiated price was taken due to exchange loss. Therefore, he held that the price reduction had not been established as due to the exchange value deterioration. It was also held that reduction of price had not been shown as due to purely commercial considerations or as one that was extended to any other buyer under identical circumstances and so on. 3. It was argued by Shri Subramaniam, learned Consultant that all the correspondence had been placed before the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant with the IDBI and the supplier that there was depreciation of the Korean currency. The IDBI and the appellant altered the price in terms of prevalent Korean currency after re-negotiating it and only thereafter the Letter of Credit was opened. All these documents were produced before the Commissioner. However, he had not seen the same and held that no evidence was produced. In an identical circumstance like this, the Tribunal in the case of Ostern Engg. Pvt. Ltd. v. CC, Calcutta - 2001 (132) E.L.T. 428 (Tri-Kolkata) has clearly held that in Paras 3 and 4 that when currency fluctuation occurs, the prices are re-negotiated, then the re-negotiated price should prevail. The findings recorded in Paras 3 and 4 of this judgment is reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f judgments cited that appellant and the supplier have negotiated the price at arm s length and they will not be considered as related persons . The Commissioner has also noted the following judgments, as noted below apply to the facts of the case :- (1) Union of India v. Mahindra Mahindra Ltd. - 1991 (55) E.L.T. 15 (Bom.). (2) Mahavir Spinning Mils Ltd. v. CC - 1992 (61) E.L.T. 730 (T). (3) CC v. Maruti Udyog Ltd. - 1987 (28) E.L.T. 390 (T) (4) Varma Trafag Instruments P. Ltd v. CC - 1993 (67) E.L.T. 861 (T) (5) Kalyani Brakes Ltd. v. CC - 1997 (89) E.L.T. 489 (T) (6) Mirah Exports P. Ltd. v. CC - 1998 (98) E.L.T. 3 (S.C.) (7) CC v. Modi GBC Ltd. - 1999 (114) E.L.T. 931 (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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