Custom, Excise & Service Tax Tribunal
Nilos India Pvt. Ltd vs Commissioner Of Customs, Chennai on 24 March, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.C/479/2001
[Arising out of Order-in-Appeal No.C.Cus.No.642/2001 dated 11.10.2001 passed by the Commissioner of Customs (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Mr. P.KARTHIKEYAN, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Nilos India Pvt. Ltd.
Appellant/s
Versus
Commissioner of Customs, Chennai
Respondent/s
Appearance :
Shri Savith V.Gopal, Advocate Shri N.J.Kumaresh, SDR For the Appellant/s For the Respondent/s CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Honble Mr. P. Karthikeyan, Member (Technical) Date of hearing : 24.3.2009 Date of decision : 24.3.2009 Final Order No.____________ Per P.Karthikeyan The impugned order decided that imports of the appellants from M/s.Nilos GmBH Germany, an entity found to be related to it, has to be assessed by loading 10% discount allowed to it as agent discount. In the appeal and during hearing, it is submitted that the impugned order held that the goods imported by the appellants have to be assessed by applying Rule 5 of the Customs Valuation Rules, 1988 and that the original authority had ruled out the applicability of Rule 5 of the Valuation Rules in assessing the impugned goods. The Commissioner (Appeals) had made out a new case different from that considered and decided by the original authority. Relying on a decision of the Tribunal in Tata Johnson Controls Automotive Vs CC Mumbai, 2004 (167) ELT 93 (Tri.-Mumbai), the ld. counsel for the appellants submits that the impugned order is not sustainable. In the decision cited, the Tribunal had vacated an order of the Commissioner (Appeals) finding that it made out a new case different from the order impugned before it. We have heard ld. SDR who reiterates the findings contained in the impugned order.
2) On a careful consideration of the facts of the case, we find that the original authority had decided that agent discount allowed to the appellants had to be included in the value of the impugned goods in terms of Rule 9 (1) (a) of the Customs Valuation Rules, 1988. He had also found that Valuation Rules 5 & 6 were not applicable in determining the value of the impugned goods. In the impugned order, the Commissioner (Appeals) held that agent discount allowed to the appellants had to be added for assessment of the impugned goods as per Rule 5 of the CVR, 1988. We find that the Commissioner (Appeals) made a new case different from the one contained in the order impugned before him and that the same is not sustainable in law. In the circumstances, we vacate the impugned order and allow the appeal filed by M/s.Nilos India Ltd.
(Dictated and pronounced in open court) (P.KARTHIKEYAN) (JYOTI BALASUNDARAM) MEMBER (T) VICE-PRESIDENT gs 1 2