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TMI Blog2018 (4) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... course of assessment proceedings, is contrary to the statutory rules. Matter is remanded to the Commissioner of Appeals to reassess the Bill of Entry, dated 20/2/2009, in accordance with the statutory rule, extracted supra, within a period of one month from the date of receipt of a copy of this order. - Civil Miscellaneous Appeal No. 596 of 2018 - - - Dated:- 4-4-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr.Hari Radhakrishnan For the Respondent : Mr.Rajnish Pathiyil Central Government Standing Counsel ORDER ( Judgment of the Court was made by S. Manikumar, J ) Being aggrieved by the Final Order No.42350/2017, dated 4/10/2017, passed in Appeal No.C/148/2010, on the file of the CESTAT, Chennai, instant Civil Miscellaneous Appeal is filed. 2. Brief facts are that Tecno Doors Private Ltd., Kancheepuram, appellant herein, had imported Landing Panel Left and Right Landing Doors and Panel Centre Cabin Operator from Spain, filed a Bill of Entry, dated 20/2/2009, for home consumption. Subject goods were covered, under invoice No.09/224, dated 16/2/2009, showing FOB value of EURO 19855.60 and air freight of EURO 10648.34. 3. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an appeal against the Bill of Entry, even if the enhanced duty was not paid under protest? 3. Whether there can be any estoppel against law even if the appellant had paid duty after declaring higher freight amount in the bill of entry in view of the second proviso to sub-rule (2) of Rule 10 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 8. Inviting the attention of this Court to the proviso to sub-Rule 2 of Rule 10 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, Mr.S.Hari Radhakrishnan, learned counsel for the appellant submitted that as per the said Rule, freight cost, if ascertainable, shall not exceed twenty per cent of the FOB value of the goods. According to him, freight cost, is EURO 10648.34 and 20% of the FOB value is EURO 3900, which was added to the invoice value to arrive at the assessable value. Learned counsel for the appellant further submitted that at the instance of the department, the balance freight cost of Euro 6748.34 was added to the assessable value as miscellaneous charges. 9. Inviting the attention of this Court to Section 128 of the Customs Act, 1962, decision in J.M.Industries Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the price actually paid or payable for the imported goods, namely:- (i). Commissions and brokerage, except buying commissions; (ii). The cost of containers which are treated as being one for customs purposes with the goods in question; (iii). The cost of packing whether for labour or materials; (b). The value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of imported goods, to the extent that such value has not been included in the price actually paid or payable, namely:- (i). materials, components, parts and similar items incorporated in the imported goods; (ii). Tools, dies, moulds and similar items used in the production of the imported goods; (iii). Materials consumed in the production of the imported goods; (iv). Engineering, development, art work, design work, and plans and sketches undertaken elsewhere than in India and necessary for the production of the imported goods; (c). royalties and licence fees related to the imported goods that the buyer is required to pay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Station, the cost of freight incurred in the movement of container from the port of entry to the Inland Container Depot or Container Freight Station shall not be included in the cost of transport referred to in clause (a). (3). Additions to the price actually paid or payable shall be made under this rule on the basis of objective and quantifiable data. (4). No addition shall be made to the price actually paid or payable in determining the value of the imported goods except as provided for in this rule. 16. There is no dispute that under the invoice, bearing No.09/224, dated 16/2/2009, contained FOB value of EURO 19855.60 and air freight of EURO 10648.34. Contention of the appellant is that he had added freight amount of EURO 3900, being 20% of FOB value, to the invoice value, to arrive at the assessable value. But the assessing Officer directed the appellant to include the balance freight amount of EURO 6748.34 as miscellaneous charges. According to the appellant, after including the balance air freight amount as miscellaneous charges, the total assessable value arrived at INR 20,33,121.28, whereas, the actual assessable value is INR 16,93,054/-. As per sub-Rule (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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