9911796707
TMI Blog2018 (2) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... by them instead of paying the basic customs duty on the invoice price, i.e. transaction value in respect of transaction with the unrelated buyer, i.e. the dealer. For the purpose of paying the CVD, the Respondent was ascertaining the assessable value on the basis of the Maximum Retail Price (MRP) as per Section 3 of the Customs Tariff Act, 1975, read with Section 4A, of the Central Excise Act, 1944 and Notification issued thereunder. It was contended that the invoice price of the goods meant for DTA sale is in the nature of transaction value and in conformity with the provision of Rule 3 of the Customs Valuation Rules, 1988 and such invoice price would form the basis of determining the assessable value. The SCN relied upon CBEC Circular F. NO.268/35/92 Cx-VIII dtd 17.08.1994 that in cases where the invoice price of 100% EOU reflects the transaction value, there is no need to ascertain the price of identical or similar goods imported through various custom houses for determination of assessable value as such comparison is unrealistic inasmuch as the quality of the goods imported and those manufactured in 100% EOU may not be comparable. That the same position has been reiterated in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted goods is for export market while the goods cleared into DTA are put into domestic market and the value of a product changes significantly from one market to another. Thus, the FOB export price cannot be made basis for transaction value because the transaction value has to be for that market. The Respondent has not produced any document to counter the contention of the Department regarding computation of assessable value on the basis of MRP - (minus) admissible abatement and the respondent did not produce any document. The adjudicating authority himself being the fact finding authority, has passed the order without calling the respondent to produce evidence in support of his contention regarding quantum of consideration. He relies upon the following orders : (i) CADILA HEALTH. Vs. CCE, VADODARA 2008 (224) E.L.T. 108 (TRI) (ii) HARYANA SHEET GLASS LTD. Vs. CCE, 1999 (110) E.L.T. 854 (TRI) (iii) HARYANA SHEET GLASS LTD. Vs. CCE 2005 (191) E.L.T. 682 (TRI) (iv) BANYAN CHEMICALS LTD. Vs. CCE, 2009 (236) E.L.T. 298 (TRI) (v) NAGREEKA EXPORTS Vs. CCE, PUNE 2003 (159) ELT 891 (TRI) (vi) ASIAN PEROXIDE LTD. Vs. CCE, GUNTUR 2002 (146) ELT 194 (TRI) (vii) NAGREEKA EXPORTS V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t propose any other method for determination of assessable value, except the sale price for the goods sold by the EOU to DTA buyer. Once this basis is rejected the revenue cannot make demand on basis of other method of determination. He further submits that the Circulars dt. 17.08.94 and 20.08.97 were withdrawn vide circular No. 933/23/2010- CX dt. 16.08.2010 hence the demand has no basis. That Circular No. 202/12/84 CX 6 dt. 29.05.1984 (Circular No. 23/84-CX6) had clarified that the value of goods sold in DTA by the EOU can be determined under Rule 8 keeping the (a) sale (invoice ) price of the goods under assessment ; (b) sale price of other consignments of identical/ similar goods ; (c) Export price of identical/ similar goods ; and (d) Nature of sale transaction, etc. The Respondent have adopted the method in clause ( c) as the basis for valuing the goods in DTA and hence the same should be accepted. Even in the Circular No. 268/85-CX-8 dt 29.09.1994 the Board has accepted the transaction value i.e more or less corresponding to the FOB value of exports can be the basis for payment of duty on goods sold in DTA. He relies upon the Tribunal s order in case of Tata Coffee Ltd. 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission considered in show cause notice as per the prevailing discount schemes. The said contents were never disputed in SCN. Hence the best judgment assessment as canvassed by the revenue is baseless. The revenue did not consider the information which was submitted to and available with the department. The details of discount, BCD, Octroi and Sales tax was available with the department as may be seen from the Annexure C to the said letter dt. 29.09.2002. The department made demand by computing the same in peculiar method namely MRP of the product and deducting the dealer s margin (commission) and CVD which is apparent from the Annexures to SCN. The department has not deducted the BCD, SAD, Sales Tax, Octroi, Dealer s discount etc to determine the correct transaction value. That if the same is taken into consideration there would be no demand in respect of CTV and there could be merely small demand in respect of Air Conditioner which is merely 4% of the duty demand. The department is proposing to re-open the self assessment already made and apply another best judgment assessment for a small amount and hence the re-opening of assessment is wrong. He submits that the reliance place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its observations are as under : "13. We have considered the submissions made by the appellants and find considerable force in their submission. The circular of the Board also realizes the fact that the value is required to be determined in terms of Rule 8 i.e. best judgment rule. The sales price charged to customer in India of the goods under assessment cannot be considered as a price in the course of international trade as provided under Section 14 of the Customs Act. The goods are sold in India. Therefore the said price cannot be considered as the price in the course of international trade. The appellants contention that the FOB price for the export of goods of similar nature varies from country to country also has considerable force. It is well known that the manufacturer is able to realize higher amount for sales made to developed countries like America, UK, France etc. and the same amount cannot be realized for identical goods when the exports are made to underdeveloped countries like Bangladesh, Malaysia, Similarly the value under Rules 5 & 6 cannot be determined in view of the peculiar nature of the product. The value of the fabric not only depend upon the quality of yarn, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be determined in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975. There is no dispute that the price is to be the price at which the like goods are imported into India. The price fetched in the domestic market cannot be considered same as the transaction price in International market. In fact the CESTAT decision cited by the S.D.R. hold against them as it very clearly says that sale price charged to customer in India cannot be considered as a price in the course of international trade as provided under Section 14 of the Customs Act, 1962. Value has to be recomputed by allowing expenses, profit, duty and taxes payable in normal course. Since in the present case import price of identical goods is available which is also certified by the Assistant Commissioner (Customs), there was no need of arriving the international price by allowing deduction from the domestic price. Even otherwise once the element of profit & taxes is deducted from the domestic price it will be nothing but import price of identical goods as a profit would be the difference between the landed price and the domestic price." This order has also been affirmed by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
