9911796707
TMI Blog2003 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants), entered into an agreement with M/s. Asahi Glass Company Ltd. Japan, (Asahi for short), the manufacturer of float glass, on 1-5-89 for effecting stock and sale of float glass in India and also for acting as an indenting agent for the same product for third parties located in various nominated places in Eastern and Northern India. In terms of the agreement, the appellants shall purchase float glass solely from Asahi, its affiliates and/or subsidiaries or act as their sole selling agents for the various nominated places, in respect of the goods through Asahi's Singapore Branch. For acting as sole selling agent for Asahi, its affiliates and its subsidiaries in the nominated places, the appellants are entitled to a commission from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, Singapore. On coming to know of the above imports, the Assistant Collector, straightaway passed an order dated 6-9-94 which was in the form of a letter, directing the appellants to make declaration before him in regard to change in the mode of invoicing, business, transaction, relationship etc. It was also directed in the said order/letter to file appeal before the Commissioner (Appeals) in case the appellants are aggrieved by the said direction. The said order was passed without issue of any show cause notice and without affording any opportunity of hearing to the appellants. Aggrieved by the said direction/order, the appellants moved the Commissioner (Appeals) and unfortunately the Commissioner (Appeals), instead of setting aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompared. He has also pleaded that in the instant case there is no reason why the transaction value cannot be accepted as the appellants are not related persons and there was no evidence of any flow back or extra consideration. He also invited our attention to the order passed by the Tribunal in the case of Premnath Diesels Pvt. Ltd. v. CC, Calcutta reported in 2000 (122) E.L.T. 458 (Tribunal) = 2001 (42) RLT 252 and submitted that the ratio of this decision is fully applicable to the case on hand and he prayed for allowing the appeal. 4. The learned JDR for the Revenue defended the impugned order and prayed for rejection of the appeal. 5. We have considered the submissions made by both the sides and gone through the records. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants and the foreign manufacturer/seller and nothing is hidden by the appellants. Payment of commission by a foreign manufacturer/supplier to a dealer/distributor in India cannot be considered as a flow back. The two imports viz. one by the appellants for their own stock and sale and the one for the third party cannot be compared as the imports by the appellants were directly from the manufacturer and in respect of the third parties it was from the authorised foreign dealer of the manufacturer. Variation in prices are bound to be there between the two types of imports and merely because commission has been paid to the appellants in terms of the agreement which have been disclosed to the Department, it cannot be said that the commission wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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