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TMI Blog2015 (12) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ous consignments through Chennai, Pondicherry, Karaikal, and Cuddalore ports. 3. Appeal No. C/324/2012 Out of total consignments, the appellants filed five warehousing Bills of Entries No. 277765 dated 13.09.2000 and No. 16147 to 16150 dated 07.06.2000 in Chennai Customs and the goods were assessed provisionally as per the Commissioners Order no. Misc. 105/99-Enquiry dated 05.11.2009 and allowed for warehousing at their refinery site at Tiruchopuram, Cuddalore. On obtaining necessary permission from the Commissioner of Customs, Trichy, the Chennai Customs had carried out the examination of the goods at the site before finalizing assessment. From the time of import to the finalization of assessment, since the goods were kept at the site for more than two to three years, from the date of import and in order to identify the correctness, value of the goods in question "as is where is condition", and the year of manufacture etc., an independent Chartered Engineer was appointed. The CE after examining the second hand machineries submitted his report dated 28.06.2000 to the Chennai Customs. As per the Chartered Engineers report, the value estimated was more than the declared value. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and warehoused. The adjudicating authority vide his order No. 2/2012 dated 09.03.2012 followed the DC. Customs, Chennai OIA dated 04.03.2011 rejected the transaction value and declared value of 18 Bills of Entries and enhanced the value by 2.195 times plus declared cost of dismantling, marking and packing costs in terms of Section 14 of Customs Act, 1962 read with Rule 8 and Rule (9) of the Customs Valuation Rules, 1988. The appellant preferred appeal before the Commissioner (Appeals), Chennai and the Commissioner (Appeals) in his Interim Order no. 1/2013 (Cuddalore) (Cus.) dated 10.12.2013 ordered pre-deposit of an amount of Rs. 8,92,13,245/- being 10% of the duty amount and to report compliance on or before 31.12.2013. The same was extended to 31.01.2014 vide amendment to the Interim Order dated 10.12.2013. Against the Interim order of the Commissioner (Appeals) the appellant preferred a writ petition No. 1562/2014 before the Honble High Court of Madras and the Honble High Court vide Order dated 08.10.2014 disposed the writ petition of the appellant and directed the petitioner to file appeal before the Honble Tribunal within 4 weeks as the appellants are already before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rief the background details of the proposal for setting up a Six Million Tons capacity of Crude Oil Refinery Plant near Cuddalore. He submits that in all the four appeals the supplier is one and the same and they have imported the secondhand plant and machinery of Mobile refinery in CKD in 123 consignments imported through four ports in Tamil Nadu i.e. 95 B/E in Pondicherry, 5 B/E in Chennai, one B/E in Karaikal and 18 B/E in Cuddalore. He explained that the said imports of secondhand refinery is arising out of a contract agreement signed on 13.02.1996 between M/s. Pennar Refineries Limited (now M/s. Nagarjuna Oil Corporation Ltd.) and M/s. UHDE, Gmbh, Germany, which is annexed at page 37 of the paper book (in appeal C/323/12). As per the agreement, the consideration for the supply of refinery equipment is for 220,000,000 DM. Subsequently, the agreement was revised and enhanced to 159,112,600 DM vide amendment to the contract dated 09.04.1999 and the price was revised to 284,112,600 DM. He submits that since there was a delay in shipment, another contract dated 14.11.2006 was signed for packing of equipments annexed at page 190 to 231 of the paper book (in C/323/12) and the conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all the consignments should be finalized and assessed together as one entity. 12. He submits that even though the entire CKD plant and machinery of refinery were partly imported through Chennai, Cuddalore, Karaikal and Nagapattinam Ports, in Tamil Nadu, since all the consignments relates to one refinery and provisionally assessed at the time of import, in order to avoid conflicting decisions by different adjudicating authorities, resulting in further appeal before different Commissioner (Appeals), he pleads that the entire case may be remanded for re-determination of value and finalization of assessment by one competent authority at any one jurisdiction. He also submits that if such remand is considered and if the entire issue is before one single authority, they will be able to produce all the relevant documents and put forth the evidences before such authority instead of four different jurisdictional authorities. Therefore, he pleaded that since Chennai, Customs is yet to finalize the assessment as per Commissioner (Appeals) order, he pleaded for remanding the matter to the adjudicating authority. 13. On the other hand Shri P.R. V. Ramanan, the Ld. Special Counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d directed the LA to re-determine and to consider the load port CE certificate. On perusal of the contract agreement entered with the foreign supplier M/s. UHDE, Gmbh, Germany, we find that it is for the supply of entire refinery equipments from the existing mobil refiney, Germany on "as is where is condition" and includes dismantling, packing, freight etc. As per the terms of the agreement, the existing mobil refinery to be dismantled and supplied to the appellants site. As per the scope of the contract, and article (2) of the agreement , the said contract covers supply of refinery equipments including containers and documentation from outside India as per the Annexure-A and includes dismantling, shifting services as listed in Annexure-B. The entire refinery equipment will be delivered at CIF terms to the Ports viz Chennai, Pondicherry, Karaikal and Cuddalore. As per article 4 of the agreement, the consideration for the supply of the second hand refinery equipment was around 220 million DM. Vide amendment to the said contract agreement dated 09.04.99, it has been enhanced. In addition to the above, the appellants are also entered into another separate contract dated 14.11.2006, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authorities at Puducherry, Cuddalore and Nagapattinam failed to determine the value of the second hand machineries in accordance with custom valuation Rules (CVR) read with Board's Circular, instead adopted the percentage of loading done by the DC, Chennai. Interestingly, we find that the two LAAs passed two contra orders, one upheld the OIO of Cuddalore and other LAA set aside the OIO of Puducherry, resulting in both assessee and revenue are before this Tribunal. It is pertinent to see that the order of DC, Chennai, which is adopted by other three authorities is non-exist now as the same has been set aside by LAA, Chennai order dated 27.7.2012. Therefore, in view of the peculiar nature of this case and considering the overall circumstances of the case and without going into the merits of the case, we are convinced that it is a fit case to be remanded to the original authority. As rightly stated by both the appellants and the special Counsel for the Revenue, we find that both the appellant and the overseas supplier entered single contract agreement for supply of entire existing refinery to set up a refinery project at Cuddalore and the supplier had dismantled and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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