9911796707
TMI Blog2008 (9) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs. Sudha Koka, learned SDR for the Revenue. 3. We heard both sides. The appellant is a 100% EOU. They are manufacturing probes which are component parts of ultra sound scanners. They are permitted to clear their goods to DTA area. The relevant period in this appeal is from 19-3-2001 to 30-4-2002. They cleared some quantity of probes into DTA to their own service centre. The subject matter of the dispute is the valuation adopted. The price adopted for sale into the DTA was the FOB price at which they exported to their parent companies/associate companies from the EOU. This value was not accepted by the revenue because the service centre to whom the appellants cleared the goods sold them at a higher price. Hence, proceedings were initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has upheld the approach of the revenue as far as the valuation is concerned. But, as regards the limitation which the party contended, the Commissioner (A) has given a finding that the entire demand is hit by time bar, therefore, he set aside the penalty under Section 11AC and he set aside the demand also. He has given his reasoning for time bar in Paras 10 and 11 of the impugned order. 4. The party is aggrieved over the impugned order because the Commissioner (A) has upheld the valuation adopted by the department which is based on the price at which the service centre sells the items. Even though, the appellants relied on the two case laws, the Commissioner (A) has stated that they are not relevant. The appellants relied on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the Board has reviewed the said instructions consequent to certain difficulties expressed by the assessing Officers and the Trade in the working of these instructions. It may be recalled that the valuation of the goods was instructed to be carried out under Rule 8 of the Valuation Rules (best judgment clause) keeping in view the following factors : (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. It was indicated in the instructions that a reference could be made to the nearest Customs House for any assistance in determining the Value. It has been represented to the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the above-mentioned circular, there is a clarification that while determining the value of the goods for clearance to DTA, where the invoice price of such goods under assessment is in the nature of 'transaction value' (e.g., more or less corresponding to the FOB value in the case of goods of identical nature) and in conformity with the provisions of Rule 3 of the revised Customs Valuation Rules, 1988, such invoice value can be accepted for the purpose of assessment. In this case, the value adopted is equal to the FOB value of the goods exported by the party to their associate units and there is a SVB Circular indicating that such price has not been influenced by the relationship between the buyers and the seller, even though they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consonance with the Board circular. Even in terms of Customs Valuation Rules, the domestic selling price cannot be the basis for valuation of goods under the Customs Act and Customs Valuation Rules. This is also very clear from the decision of the Mumbai Bench in the case of CCE, Raigad v. I.G. Petrochemicals - 2006 (201) E.L.T. 294 (Tri.-Mumbai) which the learned SDR relied on. In Para 3 of the cited judgment, it is clearly stated that the 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. Therefore, the very basis of issuing the Show Cause Notice to demand duty on the basis of the domestic selling price of the service centre i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf where the entire facts were made known to the departmental officials. In the meanwhile, their DTA clearances were permitted by the range officials in the ARIA at the invoices value declared by them. Therefore, there is nothing on record to show that they had suppressed any facts from the knowledge of the department. 11. Further, the whole issue came to the department's knowledge as early as September/December, 2001 but still the Show Cause Notice was issued only in the year 2006 invoking extended period by alleging suppression of facts and demanding duty for the period 19-3-2001 to 30-4-2002. As stated earlier, there was nothing on record that they have suppressed the facts of selling probes to their branches/service centers. All the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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