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TMI Blog2013 (8) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment to the date of refund - Similar view had been expressed by the court in CC Kandla vs. Indian Potash Limited (2006 (12) TMI 441 - CESTAT, AHMEDABAD ) - expenditure incurred by the importer if not a consideration between the buyer situated abroad and the importer - not required to be included in the assessable value. Penalty – Held that:- The case goes in assessee’s favour - there was no question of imposing penalties and the same were set aside – decided in favour of assessee. - Appeal No.: C/237 & 238 of 2012 - Final Order Nos. A/10738-10739/2013-WZB/AHD - Dated:- 10-6-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant: Shri Prakash Shah, Advocate For the Respondent: Shjri K. Sivakumar, A.R. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods) Rules, 2007. 2. Heard both sides at length. 3. Shri Prakash Shah, learned advocate appearing on behalf of the appellants argued and made, inter-alia the following submissions:- (i) That usage of throughput facility is not a condition of sale between the seller of goods abroad and the buyers in India and none of the foreign suppliers are the party to the agreement to provide throughput facility. (ii) Rule 3 of the Customs Valuation Rules only talk of the price actually paid or payable. As the prescribed conditions of rule 4 of the Customs Valuation Rules are satisfied, therefore, Rules 9(i) (e)/ 10(1) (e) of the Customs Valuation Rules are not applicable to the case in hand. (iii) LPG Storage Terminal/ Tank is a place 4.2 Km. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants are also appropriately imposed. 5. After hearing rival submissions and perusal of case records, it is seen that the issue involved is whether the charges received by the appellant providing throughput facility are required to be added to the transaction value under Section 14 of the Customs Act, 1962 read with Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. Section 14(1) along with first proviso reads as follow:- Section [14. Valuation of goods. (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seller are also required to be included in the transaction value. It is therefore, crucial in the present case to know whether the throughput charges paid represent a condition of sale or imported goods between the seller of goods outside India and the appellants. It is nowhere mentioned in the contracts agreed between the supplier of the goods outside India and the appellants that such charges are recovered on behalf of the supplier of the goods from the other parties in India with whom the supplier of goods abroad has no dealings. This issue came up before the Apex Court in the case of Ispat Industries vs. Commissioner of Customs, Mumbai [2006 (202) ELT 561 (SC)]. The issue involved in this case was whether expenses incurred by the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the port of discharge, the freight charges paid by the buyer to the shippers included the charges for freight not only up to BFL but also to Dharamtar. 36. The view we are taking is in accordance with the view expressed in Halsburys Laws of England, Fourth Edition Vol. 43(2) : Shipping and Navigation Para 1707 where it is stated : 1707. Proceeding so near to port of discharge as ship can safely get. - In practice, the contract usually provides that the ship is to proceed to the port of discharge or so near to it as she can safely get. This provision is intended to benefit the ship owner, and its effect is to substitute another destination to which the ship may proceed. By proceeding to this other destination and delivering the cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s completed when the goods leave the customs area after an out of charge order is given by the proper officer. However, the charges incurred after the out of charge order is given are not required to be added to the Transaction Value, if they are not a condition of sale between the supplier of goods outside India and the importer, as held by various judicial pronouncements. Miscellaneous charges representing normal expenses incurred in the Customs Area after importation till out of charge order is given, are also included in this case as 1% landing charges. In view of the above law laid down by the courts throughput facility charges from the place of removal to the storage place situated 4.2 Km away from the customs area has to be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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