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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 ..... 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. Consequent on the finalization of five bills of entries by Chennai Customs, the jurisdictional authorities at Pondicherry, Cuddalore and Nagapattinum have taken up the finalization of assessment of the B/Es and finalized and loaded the value by simply relying the Chennai Customs order dated 04.03.2011. No independent findings given for rejecting the transaction value. On appeal, the Commissioner (Appeal) Trichy had upheld the impugned order of loading the price by 2.195 times and LAA, Chennai set aside the OIO of the AC, Puducherry. 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 Puducherr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 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. Accordingly, the adjudicating authority proposed to reject the declared value under Rule 3 of CVR, 1998 and proceeded to re-determine the value under Rule 8 ibid, as the same cannot be determined under Rule 4 to 7 sequentially. The adjudicating authority after following the principles of natural justice, in his order No. 15051/2011 dated 04.03.2011, rejected the declared value and enhanced the value in respect of all the five Bills of Entries, in terms of Section 14 of Customs Act, 1962 read with Rule (8) and Rule (9) of the Customs Valuation (Determination of value of the imported goods) Rules, 2007. 4. Aggrieved by this order, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of ₹ 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 Tribunal in respect of other appeals of their own case in appeal No. C/323-324/2012. Accordingly, the appellant filed the present appeal. Appeal No. C/141/2012 7. The facts are identical to the above appeals. In the present appeal they have imported 95 consignments of plant and machinery for refinery through Puducherry port and filed 95 Bills of Entries. The goods were provisionally assessed and warehoused at their refinery site. The Assistant Commissioner of Customs, Customs Division, Cuddalore in his order No. 10/2011 dated 29.11.2011 finalized the assessments of all the 95 B/Es and rejected the transaction va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Heard both sides. Shri R. Parthasarathy, the Ld. Counsel appearing for all the three assessee s appeals explained in brief 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts the total payments made to their supplier as consideration of sale is strictly as per the contract amounts. Therefore, he pleaded that 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 pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment of five bills of entries based on the load CE certificate. The LAA set aside the assessment done based on the local CE certificate and 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 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. On perusal of all the four orders passed by the four different adjudicating authorities and four different Commissioner (Appeals), we find that 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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