Custom, Excise & Service Tax Tribunal
Buying Overseas vs Commissioner Of Customs on 27 November, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.C/87129/13 (Arising out of Order-in-Appeal No.142/MCH/AC/GR.II B/2013 dated 18/02/2013 passed by Commissioner of Customs (Appeals), Mumbai.) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) 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 :Yes 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? ========================================
Buying Overseas Appellant Vs. Commissioner of Customs, Respondent Mumbai Appearance: Shri.Anil Balani, Advocate for appellant Shri.S.Nathan, Dy. Comm. (AR), for respondent CORAM: Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) Date of Hearing : 27/11/2014 Date of Decision : 27/11/2014 ORDER NO Per: P.R.Chandrasekharan
1. The appeal arises from Order-in-Appeal No.142/MCH/AC/GR.II B/2013 dated 18/02/2013 passed by Commissioner of Customs (Appeals), Mumbai. Vide the impugned order, the learned lower appellate authority has dismissed the appeal of the appellant, M/s.Buying Overseas by upholding the order of the assessing authority wherein the value of the toners imported by the appellant was enhanced from US $ 4.25 per Kg to US $ 6.00 per Kg. Aggrieved of the same, the appellant is before us.
2. The learned Counsel for the appellant submits that the loading has been done based on the contemporaneous value of the imports made in respect of four bills of entry wherein the value declared varied from US $ 6.18 per Kg to US $ 7.19 per Kg. However, there is no details available on record about the quantum of imports made under these bills of entry. In the present case, they have imported 10.7 MT and 11 MT of the said goods vide 2 bills of entry dated 22/2/2012 and 14/03/2012. Further, the goods imported by the appellant were unbranded. The learned Counsel further submits that in the appellants own case, in respect of previous imports at the same price of US $ 4.25 per Kg, the appellant was asked to explain about the particulars declared by them and the appellant justified the lower rate of transaction value and the same was accepted by the department. The said transaction was pertained to bill of entry dated 06/07/2011 whereas in the present case, the bills of entry are for Feb 2012. Having accepted the value declared by the appellant in respect of contemporaneous imports, the department cannot take a U turn and again load the value without taking into account the quantum of imports involved in the contemporaneous transaction and also unbranded nature of the goods imported. Therefore, the loading of value done by the assessing officer, which has been upheld by the lower appellate authority, is without any basis and the same needs to be set aside. Accordingly, he pleads for allowing the appeal.
3. The learned Deputy Commissioner (AR) appearing for the Revenue reiterates the findings of the lower authorities.
4. We have carefully considered the submissions made by both the sides.
4.1 If the value has to be loaded based on the contemporaneous value of the imports of identical/similar goods, one of the relevant facts for consideration is the quantum of imports involved in the transactions and also the nature of goods, in respect of the material particulars. It is a normal trade practice that if the quantity of goods purchased and sold is high discounts are offered and the price of the transactions will be lower. Similarly, it is also a well known fact that branded goods fetch a higher price than unbranded goods. In the present case, we observe that the quantum of imports was substantial and the goods were also unbranded. There is no evidence placed by the Revenue while undertaking the assessments for enhancing the value. There is no comparison done at all with respect of the quantum of imports involved in the transactions and whether the goods are branded or not. In the absence of such a comparison, loading cannot be done arbitrarily as the Customs Value Rules do not provide for arbitrary loading of values. In the present case, we notice that the loading done is arbitrary and without any basis. Therefore, such enhancement of value cannot be sustained in law. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any, in accordance with law.
(Dictated in Court) (Ramesh Nair) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 4