Custom, Excise & Service Tax Tribunal
India Medtronic Pvt. Ltd vs Commissioner Of Customs on 7 October, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/350/04 (Arising out of Order-in-Appeal NoC3/345/0/2003-SEA dated 29/12/2003 passed by Commissioner of Customs (Appeals), Chennai) For approval and signature: Honble Mr.S.S.Garg, Member (Judicial) Honble Mr. Raju, Member (Technical) 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? ========================================
India Medtronic Pvt. Ltd., Appellant Vs. Commissioner of Customs, Respondent Chennai Appearance: Shri.Willingdon C, Advocate for appellant Shri.D.K.Singh, Asst. Comm. (AR), for respondent CORAM: Honble Mr. S.S.Garg, Member (Judicial) Honble Mr. Raju, Member (Technical) Date of Hearing : 07/10/2015 Date of Decision : 07/10/2015 ORDER NO Per: Raju
1. The appellants, M/s.India Medtronic Pvt. Ltd., are importing goods from M/s.Medtronic Sofamor, USA. Suspecting that there was a relationship between the appellants and the supplier M/s.Medtronic Sofamor, USA. The case was referred to Special Valuation Branch. Pending verification of the documentary evidence, the appellants were called upon to pay 1% Extra Duty Deposit (EDD). Since the appellants needed time to reply and submit data and EDD was asked for 5% on 28/11/2002. Thereafter on 07/05/2003 vide order No.S50/39/02-SVB dated 07/05/2003. The Deputy Commissioner of Customs (SVB) order loading of the value of the goods imported by the appellants by 53.11% in terms of Rule 5 of Customs Valuation Rules. This order was passed with reference to import of Pacemaker from Medtronic Sofamor, USA. The appellant challenged this order before the Commissioner (Appeals) who vide order dated 29/12/2003 upheld the order-in-original. The Commissioner (Appeals) relied on Rule 10 (1) of the Customs Valuation Rules and asserted that the appellants have failed to give necessary information and data and therefore, the Deputy Commissioner had no choice but to issue an exparte order. She also upheld the comparison of value between the imports of various goods by Canon Devices Kolkata and the appellants from the same exporter.
2. Learned Counsel for the appellants argued that the Revenue argued that the Revenue did not have option to load the value and decide the issue exparte. He asserted that the circular issued by CBEC regarding reference Special Valuation Branch, Circular No.11/2001-Cus dated 23/02/2001 does not deal with the situation where no information is provided by the importer after four months of initiation proceedings. He asserted that the Revenue had no option but to continue with the enhancement of 5% prescribed under the said circular. He also argued that in the instant case they had imported Spinal instruments from M/s.Medtronic Sofamor Donek, USA whereas in the order-in-original comparison have been made in respect of pace maker imported by Canon Devices Kolkata from Medtronic Hong Kong. He argued that not only the goods being compared are different but also the country of origin and the supplier is different.
3. Learned AR relies on the impugned order.
4. We have considered the rival submissions. We find that the impugned order seems to load the value of spinal instruments on the basis of comparison with imports of Pace maker. The impugned order also seems to compare the imports by Canon Devices Kolkata from Medtronic, Hong Kong with the imports made by the appellants from Medtronic Sofamor, USA. The impugned order seems to suggest that the importer had failed to submit the data and therefore, there was no choice but to issue an exparte order. Looking into the facts of the case it is apparent that the investigations required to be done to examine the influence on price on account of relationship has not been contacted in the absence of records that were required to be provided by the appellant. The revenue instead of getting the records has compared the incomparable and issued the impugned order. The impugned order is accordingly set aside and the matter is remanded to the original adjudicating authority. The appellants are directed to submit the information sought within a month of receipt of this order. The original adjudicating authority is directed to finalise the issue within three months of the submission of the data.
(Pronounced in Court) (S.S.Garg) Member (Judicial) (Raju) Member (Technical) pj 1 2