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TMI Blog2008 (9) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... te, for the Appellant. Mrs. Sudha Koka, SDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - These appeals by the party and the revenue have been filed against Order-in-Appeal No. 109/2007, dated 30-8-2007 passed by the Commissioner of Customs (Appeals), Bangalore. 2. Shri Rajesh Chander Kumar, learned Advocate appeared on behalf of the party and 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 against them. Even though, the appellants relied on the Board's Circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o referred to the Board's circular dated 29-9-1994, wherein it had been clarified that in the case of sale transfer of goods between the related persons, valuation has to be based on Rule 8 of the Valuation Rules. According to the Commissioner (A), the best judgment method would be to take the domestic price. That means the price at which the goods are sold to others. 6. The learned Departmental Representative reiterated the impugned order of the Commissioner (A) as regards the valuation. 7. On a very careful consideration of the issue, we find that the Board has issued a circular dated 29-9-1994 regarding the valuation of the goods manufactured by units working under the 100% EOU scheme when the goods are cleared to the Domestic Tariff Area. The said circular is reproduced herein below. "F. No. 268185-CX. 8, dated 29-9-1994 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Valuation of Goods Manufactured by units working under the 100% EOU Scheme - Regarding. I am directed to invite a reference to Board's instructions F.No. 202/12/84-CX.6, dated 29-5-1984 (Circular No. 23184-CX. 6), prescribing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 are related. In such circumstances, it is not understood how the Commissioner (A) has not accepted the said value. In any case, if we take the decided case laws, which are relied by the party, they are very relevant in this context. In the case of Axion Impex International Ltd. (supra), it has been held that when the export price of the same goods available and higher than the price of the goods sold in India, the same has to be accepted. In any case, it has been held that Rule 8 of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond six months and it was also contented that having paid the duty and interest before the issue of Show Cause Notice, the mandatory penalty under Section 11AC is also not imposable on them. In this regard, I have noticed that the appellant cleared the goods to their branch/service center after obtaining permission from the department's officials by regularly filing AR-1 along with invoice copies. These were permitted by the officers by counter signing the documents. Further, the appellant also informed the Range officials vide letter dated 24-9-2001 regarding the sale to DTA units and the department sought certain details from them vide letter dated 19-10-2001. Subsequently, when the appellant vide their letter dated 19-12-2001 submitted copies of all documents, they were summoned and recorded statements during December, 2001 itself 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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