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TMI Blog2013 (8) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2199 & 2280/2012 - 25071-25082/2013 - Dated:- 24-1-2013 - P G Chacko, J. For the Appellant: Mr V Lakshmi Kumaran, Adv. For the Respondent: Mr PRV Ramanan, Special Consultant 1.These are stay applications filed by the appellants seeking waiver of predeposit and stay of recovery in respect of the dues adjudged against them. M/s. Hewlett-Packard India Sales Pvt. Ltd., hereinafter referred to as 'HP (India)" have filed two appeals with stay applications. In appeal No.C/1932/2012, their challenge is against the following demands: Customs duty - Rs.925.4 crores Penalty under Section 114A of the Customs Act - Rs.925.4 crores Penalty under Section 114AA of the Customs Act - Rs.50.02 crores Redemption fine imposed under Section 125 of the Customs Act - Rs.29.12 crores Towards the above demand of duty, Rs.95 crores was paid during investigations and Rs.50 crores was paid on 11/12/2012 (after the filing of the appeal). The stay application in appeal No.C/1932/2012 seeks waiver and stay in respect of the balance amount of duty, penalties etc. 2. In appeal No.C/2027/2012, HP (India) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had filed their rejoinders (written submissions) on 27/03/2012 and the Commissioner passed Order-In-Original No.2/2012 on 30/03/2012 without considering the final written submissions. As regards Order-In-Original No.4/2012, it was submitted that the assessee's final written submissions were received by the Commissioner on 31/03/2012 and the latter passed the order on the same date without considering any of such written submissions. According to the learned counsel, the orders hastily passed by the Commissioner without considering the final written submissions of the assessee are liable to be set aside on the ground of violation of the principles of natural justice. The learned counsel made certain further submissions and, contextually, quoted from para (7) of Orkay Silk Mills Limited and another Vs. M.s. Bindra and others [1988(33) ELT 48 (Bom.)]. We have also heard the learned Special Consultant in this context. After considering the submissions, we are not inclined to take recourse to the short-cut of remand suggested by the learned counsel inasmuch as both the orders passed by the Commissioner are found to have elaborately dealt with the substantive issues. At this stage, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions is Rs.925.40 crores, for which the counsel for the appellant has given the following break-up: i. Freight Insurance - Rs.272 crores ii. MRP products - Rs.130 crores iii. Customs duty/Cum-duty treatment - Rs.70 crores vi. Warranty costs - Rs. 50 crores v. Trade discounts - RS.310 crores vi. Overfunding - Rs.90 crores vii. SRFR products- Rs.3.4 crores With regard to the first item viz. freight insurance, the learned counsel has submitted that these elements were part of the declared CIF value and hence no further addition was warranted. On the other hand, it has been pointed out by the learned Special Consultant for the Revenue that, as the actual amounts of freight insurance were not disclosed by the importer, addition of these elements to the declared value was necessary. With regard to maximum retail price (MRP) products, the learned counsel has submitted that it is not the case of the Department that HP (India) resold the goods in India at any price higher than the declared MRP. The adjudicating authority has not found any retail sale of the goods at a value beyond MRP. The learned Special Consultant has also reiterated the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stify the value declared in the Bill of Entry. It was in the context of examining this claim that the adjudicating authority found that HP (India) deviated from their own global pricing policy so as to undervalue the subject goods. Such modus operandi of the party was not found in the past case (1998) decided by the Tribunal. In this scenario, the claim of the learned counsel that the Tribunal's judgment of 1998 is squarely applicable to the present case is, prima facie, not acceptable. 10. We find that the learned Commissioner conducted an in-depth examination of the various contours of HP's global pricing policy. After carefully considering the documentary and oral evidence available on record, he rendered a decision on the question whether the declared price of the subject goods was in conformity with their policy. In this context, the learned Commissioner elaborately dealt with the various trade discounts which were claimed to have been allowed by the supplier. The documents supplied by the importer did not account for any of these discounts. It was also found that certain vital facts and materials required for the correct determination of the assessable value of the goods ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial hardships. 15. We have already taken note of the payment of Rs.95 crores made by the assessee towards demand of Rs.925.4 crores. For the reasons already stated by us, they should make further predeposit of Rs.120 crores under Section 129E of the Customs Act. We direct them to predeposit this amount of Rs.120 crores (Rupees one hundred and twenty crores only) within seven weeks (this much time specially sought by the learned counsel) and report compliance to the Deputy Registrar on 18/03/2013. Deputy Registrar to report to the Bench on 20/03/2013. In the event of due compliance, there will be waiver of predeposit and stay of recovery in respect of the penalties imposed on the assessee and the balance amount of duty. There will also be waiver and stay in respect of the penalties imposed on the functionaries of the company, viz. appellants in appeal Nos.C/1933-1938/2012. 16. For the reasons stated in para-2 of this order, waiver and stay are granted in respect of the unpaid amount of penalty imposed on the assessee qua appellant in appeal No.C/2027/2012. The same reliefs are granted to the assessee's functionaries viz. appellants in C/2028-2031/2012. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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