Custom, Excise & Service Tax Tribunal
Varun Overseas vs Cce, Delhi-Iv on 6 June, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.3
Date of Hearing/Decision: 06.06.2013
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Manmohan Singh, 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?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3
Whether Their Lordships wish to see the fair copy of the Order?
seen
4
Whether Order is to be circulated to the Departmental authorities?
yes
Appeal No.C/415-422/2007
(Arising of order-in-Appeal No.22-29/Cus/Appl/DLH-IV/2007 dt.13.04.2007 passed by the CCE(A), Faridabad)
Varun Overseas Appellant
Vs
CCE, Delhi-IV Respondent
Appeal No.C/592-594/2007 (Arising of order-in-Appeal No.44-46/Cus/Appl/DLH-IV/2007 dt.4.06.2007 passed by the CCE(A), Faridabad) Varun Overseas Appellant Varun Overseas Khandelwal Industrial Enterprises Vs CCE, Delhi-IV Respondent Present for the Appellant: Shri Roshan Lal, Consultant Present for the Respondent: Sh.A.K.Jain, JCDR Sh.P.K.Sharma,DR Appeal No.C/622/2007 (Arising of order-in-Appeal No.CC(A)/Cus/54/ICD/D-II/2007 dt.29.06.2007 passed by the CCE(A), Faridabad) CC, ICD, TKD, New Delhi Appellant Vs Varun Overseas Respondent Present for the Appellant: Sh.A.K.Jain, JCDR & Sh.P.K.Sharma,DR Present for the Respondent: Sh.Roshan Lal, Consultant Appeal No.C/746-751/2007 (Arising of order-in-Appeal No.459-64/Cus/Appl/DLH-IV/2007 dt.4.06.2007 passed by the CCE(A), Faridabad) Varun Overseas Appellant Vs CCE, Delhi-IV Respondent Present for the Appellant: Shri Roshan Lal, Consultant Present for the Respondent: Sh.A.K.Jain, JCDR Sh.P.K.Sharma,DR Appeal No.C/22 & 24/2008 (Arising of order-in-Appeal No.CC(A)/Cus/158-160/ICD/D-II/2007 and No.CC(A)/Cus/161-164/ICD/D-II/2007 dt.1.10.2007 passed by the CCE(A), Faridabad) CC, ICD, TKD, New Delhi Appellant Vs Varun Overseas Respondent Present for the Appellant: Sh.A.K.Jain, JCDR & Sh.P.K.Sharma,DR Present for the Respondent: Sh.Roshan Lal, Consultant Appeal No.C/42-43,50-56/2009 (Arising of order-in-Appeal No.19 to 20/Cus/Appl/DLH-IV/8 and No.21 to 24/Cus/Appl/DLH-IV/2008 and No.16 to 18/Cus/Appl/DLH-IV/2007 dt.8.10.2008 passed by the CCE(A), Faridabad) Varun Overseas Appellant Vs CCE, Delhi-IV Respondent Present for the Appellant: Shri Roshan Lal, Consultant Present for the Respondent: Sh.A.K.Jain, JCDR Sh.P.K.Sharma,DR Coram: Honble Mrs.Archana Wadhwa, Member (Judicial) Honble Mr.Manmohan Singh, Member (Technical) Final Order No.56670-56698/2013 Per: Archana Wadhwa All the appeals filed by the assessee as well as by the Revenue are being disposed of by common order as the issue involved is identical in all these appeals.
2. As per facts on record, the assessee have been importing ball bearing of KG brand and CRX brand from China and filed bills of entry for clearance of the same declaring the value of ball bearing as per invoice. The appellants also filed manufacturers invoice as also suppliers invoice which they have produced on records.
3. Revenue entertained a view that the value declared by the appellants was at the lower side inasmuch as other contemporaneous imports of ball bearings from China was found to be declared on the higher value. Accordingly assessment for the bill of entry was done at USD 1.60 per kg. The said provisional assessment was subsequently converted into final assessment by the original adjudicating authority by passing the order. The said order was upheld by the Commissioner (Appeals). Hence the present appeals.
4. In some of the cases, the Commissioner (Appeals) set aside enhancement of the value on the ground that the Revenue has not been able to advance any justifiable ground to do so and since assessee has placed on record the manufacturers invoice as well as suppliers invoice, which does not stand rebutted by the Revenue, enhancement was not justified.
5. After hearing both sides, we find that in all the appeals the appellants have imported ball bearings. On going through the various orders of the Commissioner (Appeals), we find that he primarily relied upon that the guidelines issued by the Bombay Customs Commissionerate as regards value of ball bearings. The lower authorities have also observed that such guideline issued by the Bombay Customs Commissionerate stands held as permissible, by the Tribunal in the decision in the case of M/s.Techno Marketing vs. Commissioner of Customs (Import), Mumbai-2004 (164) ELT 113 (Tri.). The lower authorities have also referred and relied upon other various bills of entry showing contemporaneous import from China ball bearings on the enhanced price.
6. However, we find that though lower authorities have referred to certain other bills of entry but there are no details of goods imported under the cover of said so-called contemporaneous bills of entry. It is well settled that imports can be held to be contemporaneous to other import only when all the major details like time of import, country of origin, quantity of the goods, quantity of consignment matches. In the absence of such details, it cannot be held that import under other bills of entries were contemporaneous in nature. Neither side is able to provide such details. As such, we are left with no other alternative but to set aside the impugned order and remand the matter to the adjudicating authority for fresh consideration, after noting the details in the so-called contemporaneous bills of entry.
7. Needless to say that the assessee would be given an opportunity to put forth their case, after they are provided relied upon contemporaneous bills of entry.
8. At this stage we also note that the earlier decision of the Tribunal in the same appellants case being Final Order No.C/148/11 dated 15.4.2011 has set aside the identical enhancement of assessable value of ball bearing and has remanded the matter to the adjudicating authority.
9. As regards the appeals of the Revenue, we find that the Commissioner (Appeals) has not taken into consideration the contemporaneous import and has simpliciter allowed the assessees appeals by observing that the Revenue has not advanced any evidence for enhancement of the values. Inasmuch as we are remanding the assessees appeals to the lower authorities, we allow the Revenues appeals also by way of remand. All these appeals are disposed of in the above terms.
(pronounced in the open court) (ARCHANA WADHWA) `MEMBER (JUDICIAL) (MANMOHAN SINGH) MEMBER (TECHNICAL) mk 7