Custom, Excise & Service Tax Tribunal
M/S. Kimberly Clark Hygiene Products ... vs Commissioner Of Customs(Import), ... on 7 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.1
APPEAL NO.C/86241/13-Mum
(Arising out of Order-in- Appeal No.1005/MCH/AC/SVB/PSS/2012 dtd. 21.12.2012 passed by the Commissioner of Customs (Appeals), Mumbai )
For approval and signature:
Honble Mr S.S.Kang, Vice President
Honble Mr.P.K.Jain, Member(Technical)
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1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
============================================================= M/s. Kimberly Clark Hygiene Products Pvt.Ltd.
:
Appellants VS Commissioner of Customs(Import), Mumbai Respondent Appearance Shri S. Thirumalai, Advocate for Appellants Shri D.Nagveukar, Addl. Commissioner(A.R.) for Respondent CORAM:
Mr. S. S. Kang, Vice President Mr.P.K.Jain, Member(Technical) Date of hearing: 07/03/2014 Date of decision 07/03/2014 ORDER NO. Per : S.S.Kang Heard both sides.
2. The appellants filed this appeal against the order of the Commissioner (Appeals) whereby the Commissioner(Appeals) set aside the adjudication order which was in favour of the appellants. The adjudicating authority in the adjudication order held that since the payment is towards to manufacture the products in India and is calculated on net profit of the company and therefore no addition is required to be made under Rule 10(1)(c) of the Customs Valuation Rules, 2007. This finding was set aside by the Commissioner(Appeals) in the impugned order.
3. We have gone through the impugned order passed by the Commissioner (Appeals). The relevant portion of the order is reproduced below:-
7. In the instant case the respondent is engaged in hygienic products and the same are manufactured and sold in terms of the said agreement dtd. 01.4.2006. The said inputs have no value unless they are manufactured and sold in terms of the said agreement. Accordingly, the respondent, is under obligation to use the patent right and trade marks. The subject royalty amount is paid for condition for sale of the imported goods from related buyer. Therefore, the payments made under the said agreement are includible in invoice value of the goods that they do not use the patent and trademark of their related supplier and the royalty is paid for licence granted as per the said agreement dtd. 01.4.2006. The lower authority has held that the payment made by the respondent in terms of the said agreement is towards to manufacture the products.
8. In view of the above findings and observation, I set aside the impugned Order-in-Original as not proper or correct. Additions sought by the department are allowed in terms of Rule 10(1) of Customs Valuation Rules, 2007. The respondent to be given reasonable opportunity to present his case.
4. The reading of the above order shows that the Commissioner(Appeals) has set aside the order of the adjudicating authority without giving any finding on the issue involved. In view of this, we find that the issue requires reconsideration afresh by the Commissioner(Appeals). The impugned order is set aside and the matter is remanded back to the Commissioner(Appeals) to decide afresh after affording an opportunity of hearing to the appellants. The appellants will appear before the Commissioner(Appeals) on 6.5.2014 and thereafter fix the date for hearing and decide the matter afresh.
5. Appeal is disposed of by way of remand. .
(Dictated in court) P.K.Jain Member(Technical) S. S. Kang Vice President pv 3