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TMI Blog2017 (1) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... not at the same commercial level. The lower authority has taken three invoices of third parties for comparison with that of-for the appellants. As per him the third party invoice price on average works out about 120% more than the price of the identical goods imported by the appellants. It is found that taking the price of the third party as bench mark as done by the lower authority, in the first item case, the discount for the appellant comes to 23.3%, and in the second item case it comes to 22.3%. for the third items, no item number has been mentioned, hence it is a matter of question whether they are identical. The findings of the lower authority appears to be factually incorrect. Enhancement of value, by lower authority is set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not applicable on the face of the evidence of the higher price available. 3. On the other hand Shri Sanjay Singhal, Ld. Counsel Appearing on behalf of the respondent submits that the Ld. Commissioner (Appeals) dealt with the matter in detail and given findings not only on the law but also on facts and came to conclusion that the enhancement of the value on the basis of some stray imports by the independent importers. He submits that the respondent is wholesale distributor of the goods supplied by the foreign supplier. On the import made by the independent importer also the respondent gets the distributor commission. It is settled law that the distributor price and price of importer other than distributor will always be different. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent's import can not be enhanced. In the judgments relied upon by the respondent, it is clearly held that distributor's import price and import price of independent importer will be acceptable separately and in such case the distributor's price can not be influenced by the import of independent import. 5. On careful perusal of the impugned order, we find that the Ld. Commissioner has with proper application of mind addressed the issue not only considering the fact of aspect of commission but also on law point. The relevant findings of the impugned order is reproduced below: I have gone through the records of the case. There is no payment of know how fees, royalty fees etc. The parties are related under Rule2(2), and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by Tribunal that related party importing goods in bulk for stock and sale and individual consumers importing small quantity for actual use, both constitute different class of buyers- As per Tribunal, deductions given by supplier/principal on account of expenditure incurred in the process of trading by the subsidiary and also on account of higher quantity involved in transaction, are in the ordinary course of international trade, and held that price is in accordance with Rule 4(3)(a). It was also held that activities of stock and sale undertaken. by the subsidiary are not to be considered as indirect payment to supplier, and hence cost of such activities shall not be added to price payable. In the Tribunal decision of Premnath Diesels Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Distributor price list. In case there is any sale to third parties by the supplier, the difference between price charged to them and the Distributor price list is remitted to the appellant as commission. Hence it is apparent the appellants which is acting both as distributor and the indenting agent, and third parties in India importing directly from the supplier, both stand at different footing and not at the same commercial level. Further as per the Tribunal decision relied by the appellants, the difference of the price which is received by the appellants from the supplier as commission cannot be added to the price of the appellant. The lower authority has taken three invoices of third parties for comparison with that of-for the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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