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TMI Blog2023 (8) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... tated in the presence of the counsel. HELD THAT:- The Appellant is correct in contending that the Commissioner (Appeal) had given a finding on merits against the Appellant by observing that royalty under the Technical Assistance Agreement is required to be added under Rule 10(c) of the Customs Valuation Rules, 2007 rejecting the contention of the Appellant that same cannot be added under the Customs Valuation Rules, 2007. The Commissioner (Appeal) after having given a finding on merits against the Appellant remanded the matter to the Original Authority for ascertaining the quantum of the amount to be added for arriving at the transaction value. The Appellant in its appeal before the Tribunal has challenged the said finding of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal, Mumbai (for short the Tribunal ) in Customs Appeal No. 87534 of 2013 dated 3rd January 2020. 2. The Appeal is admitted on the following substantial questions of law:- (a) Whether the Tribunal has erred in dismissing the appeal filed by the Appellant without hearing the case on merits on the ground that the Commissioner (Appeals) had remanded back to the original authority for re-adjudication, when in fact the remand was only for a limited purpose of re-quantification of customs duty, after deciding the issues on merits against the Appellant? (b) Whether the Tribunal was right in refusing to correct the error apparent on record in its final order on the ground that the order was dictated in the presence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported goods are at arm s length and invoice value as declared is acceptable as transaction value under Rule 3(3)(a) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. In the said order, it is noted that the order was subject to review after a period of three years. (v) On 2nd February 2011, on an application made by the Appellant for review of the above Order-in-Original dated 31st October 2007, passed by the Commissioner of Customs, the said authority after reviewing the Order-in-Original and various documents filed in the course of the review proceedings did not find any reason to interfere with the earlier Order-in-Original dated 31st October 2007, accepting the declared invoice value of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be ascertained in relation to the imports in order to determine its inclusion as per CVR 2007. The order-in-original has not recorded any verification of the facts and submissions made by the importer. 6. In view of the above discussion, I set aside the impugned order as not proper or correct. The additions sought in the appeal are allowed. However, a reasonable opportunity shall be given to the respondent before any further adjudication by the SVB so that the importer/respondent could put forth the appropriate documentary evidence regarding the quantum of loading as per CVR 2007, before any review order is passed by the SVB. (emphasis supplied) (viii) Aggrieved by the aforesaid order, the Appellant filed an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders passed by the Tribunal on 3rd January 2020 and 30th June 2020 then the present appeal is filed. 5. The Appellant would contend that the Tribunal is not correct in observing in the impugned order that since the Commissioner (Appeal) has remanded the matter to the Original Authority for a detailed fact finding based on the available records, the appeal filed by the Appellant cannot be considered on merits. The Appellant would contend that the Commissioner (Appeal) in her order has given a categorical finding on merits that the royalty under the Technical Assistance Agreement is required to be added under Rule 10(c) of the Customs Valuation Rules, 2007 for arriving at the correct value and it is only for the quantification purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istance Agreement for under the Customs Valuation Rules, 2007. If the Appellant succeeds on the merits, then the question of quantification would not arise. In our view, the Tribunal has not considered paras 5 and 6 of the Commissioner Appeal s order (which is reproduced hereinabove) in proper perspective, and has merely got carried away by the remand, without realising that there was a finding on merits against the Appellant and which was challenged before the Tribunal. In our view, the Tribunal ought to have adjudicated the appeal of the Appellant on merits and was not justified in observing that no adjudication on merit is warranted because of the matter having remanded to the original authority. 9. In view of above, we pass the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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