9911796707
TMI Blog2023 (5) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... that the importer and the supplier as referred above are related persons and it was ordered to load the declared invoice values of all the imports by the appellants in the following manner. Year Goods for internal use Spare part Capital goods STP unit Equipment for demonstration purposes 2000 46% of GPL 46% of GPL 46% of GPL 46% of GPL 2001 50% of GPL 50% of GPL 50% of GPL 50% of GPL 2002 48% of GPL 48% of GPL 48% of GPL 48% of GPL 2003 46% of GPL 46% of GPL 46% of GPL 46% of GPL 2004 46% of GPL 46% of GPL 46% of GPL 46% of GPL 2005 46% of GPL 46% of GPL 46% of GPL 46% of GPL 2006 46% of GPL 46% of GPL 46% of GPL 46% of GPL 2007 46% of GPL 46% of GPL 46% of GPL 46% of GPL The above SVB order dated 23.04.2009 was accepted by the appellant and the department. Based on the above SVB order dated 23.04.2009, the appellant requested for finalisation of the provisional assessments. The original authority vide Order-in-Original No. 694/2014 dated 31.12.2014 finalised the provisional assessments in the case of 224 Bills of Entry which were provisionally assessed during the year 2002-2003. He found that in respect of these 224 Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted. It is claimed by them that the above finding was factually and legally incorrect as the findings in para 17 of the above SVB are irrelevant for the finalisation of Bills of Entry provisionally assessed for the relevant period. It is submitted by them that the present dispute is only regrading import of spares which have been imported at 35% of GPL for the period 2002 since all unrelated buyers were allowed a discount of 52%, the SVB order had enhanced the declared value to 48% of the GPL for the said period. Similarly for the year 2003, the discount allowed to unrelated buyers was 54% and the SVB order enhanced the declared value to 46% of GPL. Therefore, they claim that only for the years other than 2001, 2002 and 2003, the declared value is to be accepted. It is also submitted that the Revenue has not found any instance where the declared value of spare parts is more than the average annual selling price to unrelated buyers. Therefore, they submit that the Commissioner (A) was incorrect in rejecting the findings of the original authority. It is also submitted by them that this Tribunal vide Final Order No. 20005-20010/2022 dated 7.1.2022 had allowed their appeals in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls have been raised to the foreign supplier. In other situations, these symbolic deliveries have been resold to the said supplier. Thus, there appears to be restrictions upon 'Sales' of spares to be supplied to the foreign supplier's customers in India." It was also held that "In view of the above, it is clear that the transaction values cannot be accepted after examining the circumstances of the sale of imported goods, which indicate that the relationship has influenced the prices. But in order to arrive at the correct and fair value that data provided by the appellant in 4 volumes as mentioned above, has to be analysed and verified and adjusted has to be made in the price of the imported goods for the STP unit as the price has to be revised at 46% with the effect from 12.06.2004. Therefore, the impugned order is liable to be remanded to the Adjudicating Authority to assess the impugned goods keeping the above facts in mind and verifying the data submitted by the appellant after following the Principles of Natural Justice." 5. Accordingly, the Original Authority vide SVB order dated 23.04.2009 held as follows: "21. The declared transaction value of the importer is rejected and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld "where the declared invoice values of the importer are more than the average annual selling price of the unrelated buyers in India, the same shall be accepted." Thus, I find merit in the Departmental Appeal and consequently, I hold that part of the impugned order granting refund of Rs. 26,57,893/- as incorrect as it is not in consonance with the intent of the SVB order. It is also pertinent to note that when the SVB order New Delhi finalised the valuation applying the Valuation Rules, there is no scope to interpret the language of Para 17 of the Adjudication Authority who himself is a creature of the Customs Act, 1962. Accordingly, I do not concur with the ground of appeal of M/s. Cisco interpreting the language of the SVB Order of New Delhi in the way they have pleaded before this forum, so as to render a contrary opinion than what is intended in the law." 8. From the above facts, it is seen that the SVB order dated 23.04.2009 has clearly held that: "16. The importer has submitted data pertaining to imports of Cisco products made by top unrelated importers in India for the year 2000 to 2008 showing total no. of transactions, total value of transactions, total value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original assessing authority while finalising the assessment found that there was an excess payment of duty of Rs. 4,18,60,248/- which is refundable to the appellant. The Commissioner (A) ignoring these facts only harps on last two lines of para 17 which refers to "In rest of the cases where the declared invoice values of the importer are more than the average annual selling price of unrelated buyers in India, the same shall be accepted." There is no evidence or data to show that the declared invoice value of the spares imported by the appellant was more than the average annual selling price of unrelated buyers in India. Therefore, we find that the original authority has rightly finalised the provisional assessment based on the final SVB order dated 23.04.2009 where the loading for the relevant years for the spare parts was 46% to 48% respectively. From the Final Order No. 20005-20010/2022 dated 7.1.2022 passed by this Tribunal in the appellant's own case, it appears that similar Order-in-Original No. 693/2014 dated 20.12.2014 where provisional assessments were finalised in respect of 15 Bills of Entry was upheld by the Tribunal. 10. In view of the above, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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