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TMI Blog2004 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... of the OE for assessment purposes. The appellants have stated that the commercial level at which the OE is imported is much higher than that of those of the spare parts. Moreover, the spare parts have to be kept for fairly a longer time. All these factors influenced the price of the spare parts. lt is also seen that simply for the reason that the appellant and the exporters are related persons, we cannot enhance the price of OE to the level of the Spare parts unless it has been shown that the relationship has influenced the price. It is for the department to do thorough investigation and come out with evidence to show that the relationship has influenced the price. The department has not done that. Thus, we do not have any reason to uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the appellants alleging that they are importing identical goods from both VTC and VPC; that the prices charged by VTC is low as compared to the prices charged by VPC. Hence, there was a proposal to enhance the prices of the goods imported from VTC to the extent of the prices charged by VPC. The Deputy Commissioner, in his Order-in-Original dated 25th February, 2000, decided that the invoice prices of Imports from the VTC should be enhanced to the level of the prices indicated in the price list circulated by VPC for the spares under Rule 5 of the Customs Valuation Rules, 1988. The appellants filed an appeal before the Commissioner of Customs Office, Chennai, against the Order-in-Original passed by the Deputy Commissioner. In the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty cannot bring in a point, which is not proposed in the Show Cause Notice. The CESTAT, in the case of Tata Johnson Controls Automotive v. CC, Mumbai [2004 (167) E.L.T. 93 (Tri.-Mumbai)] held that the Commissioner (Appeals) not upholding valuation determined under Rule 6 of the Customs Valuation (Determination of Values of Imported Goods) Rules, 1988 arrived at by the lower authority but proceeded to make out and ordered a fresh case under Rule 7(3)(a) and a new case cannot be made out in appeal. The learned Advocate relied on the following case laws. (1) Rolemetal Industries v. Collector of CE [1993 (67) E.L.T. 740 (Tribunal)] (2) Bhuwalka Steel Industries Ltd. v. CCE, Bangalore, CESTAT Final Order Nos. 1154-1157 dated 25-6-2004 [2004 (176 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that the mere fact that the seller and buyer are related, is not sufficient to reject the transaction value. It was argued that the goods imported from VTC and VPC are not at all identical goods as they originate from different countries and they will not satisfy the definition of identical goods given in Rule 2(c) of the Customs Valuation Rules, 1988. When the goods are not identical, invocation of Rule 5 by the original authority is wrong and the Commissioner (Appeals) has not upheld the order invoking Rule 5 of the Valuation Rules. It was strongly urged that it is well known even in domestic markets that the price of spare parts is definitely higher than the price of the OE for various reasons. The same practice is prevailing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation between OE and the spare parts is different for different countries. For example, in China, the price relation between the OE and spare parts in respect of Radiator is seen as 1:3 but for India it is kept as 1:2. In view of the above submissions, the learned Advocate, prayed that the OIA may be set aside. 6. The learned JCDR urged that there is nothing wrong with the OIA as it is only a remand order to the original authority to examine the issue in the light of the Rule 8 of the Customs Valuation Rules, 1988. It was emphasized that the party's contention that the goods are not identical is not correct as certain invoices reveal that both spare parts and OE originate from the same country. She also said that there is a tendency on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and come out with evidence to show that the relationship has influenced the price. The department has not done that. Under these circumstances, we do not have any reason to uphold the decision to enhance the price of the OE Parts to that of the spare parts. In any case, the OIA has already set aside the determination of the transaction value under Rule 5 of the Valuation Rules, 1998. Now it is for us to decide whether the Commissioner (Appeals) is correct in remanding the matter to the original authority with a direction to fix the assessable value in terms of Rule 8. In view of what we have stated above, the Commissioner (Appeals) is clearly in the wrong, in traversing beyond the scope of the original show cause notice. Under the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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