Custom, Excise & Service Tax Tribunal
M/S. Hindustan Lever Ltd vs Commissioner Of Customs (Import), ... on 5 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/598/2004-Mum (Arising out of Order-in-Appeal No. 76/2004-MCH dated 25.03.2004 passed by the Commissioner of Customs (Appeals) Mumbai ) For approval and signature: Honble Mr. P.S.Pruthi, 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 : No
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. Hindustan Lever Ltd.
:
Appellant
VS
Commissioner of Customs (Import), Mumbai
:
Respondent
Appearance
Shri R.G. Sheth, Advocate for Appellant
Shri D.K. Sinha, Assistant Commissioner (A.R) for respondent
CORAM:
Mr. P.S.Pruthi, Member (Technical)
Mr. Ramesh Nair, Member (Judicial)
Date of hearing : 05/08/2015
Date of pronouncement : 7/9/2015
ORDER NO.
Per : P.S. Pruthi
This appeal is directed against the impugned Order-in-Appeal in which the Commissioner upheld the decision of the lower authority to enhance the assessable value and deny the benefit of Notification No. 321/76-Cus dated 2.8.1976.
2. The appellant imported 203.261 MTs of Crude Glycerin vide Bill of Entry dt. 11.04.1984. The value declared was as per invoice No. 10/334 dt. 28.3.1984 issued by M/s. Transicom (Burma). The appellant claimed the benefit of preferential rate of duty under Notification No. 321/76 which was allowed. Later, the internal audit department raised two objections: First the invoice submitted at the time of clearance was on FOB basis as nothing was mentioned regarding terms of contract being on CIF basis. Secondly, notification No. 321/76 envisaged exemption to goods of Burmese origin but the country of origin certificate (COO) was not pasted on the Bill of Entry. In view of these objections a show cause notice was issued demanding duty of Rs.12,39,767/-.
3. The contention of the Ld. Counsel is that the noting on the reverse of the Bill of Entry indicates that the COO certificate was produced. Further, he draws our attention to the certificate of the manufacturer i.e. Pharmaceutical Industries Corporation Burma certifying the goods to be Burmese Origin. Similarly, the certificate of the surveyor that is M/s. SGS (Burma) Ltd. also showed the origin as Burma. Further though invoice did not mention the import was on CIF basis, but subsequently a photo copy of the invoice having a Bank stamp showed that the import was CIF basis. They could not produce a copy of the L/C dated 6.3.1984 as the case had become very old as intimated to the Department vide their letter No. RG1/H41/360/2003 dated 5.8.2003.
4. The Ld. AR appearing on behalf of Revenue reiterated the findings of the lower authorities.
5. We have carefully considered the facts and submissions made by both sides. On the issue regarding certificate of origin we find that the appellant submitted a certificate of origin dt. 19.3.1984 issued by M/s. Pharmaceutical Industries Corporation declaring the country of origin as Burma. The goods were transshipped through Singapore and a Certificate dt. 3.4.1984 issued by the Singapore Indian Chamber of Commerce certifying the goods to be of Burmese Origin was also submitted. In the letter certificate the exporter is shown as M/s. Transicom, Singapore who issued the invoice to the appellant. The audit seems to have raised the dispute that the certificate of origin was not pasted on the reverse of the Bill of Entry. The photocopy of the reverse of the Bill of Entry though not very readable, seems to indicate that the photocopy was pasted on the back side. Without going into this dispute we find that certificates of origin have been submitted by the manufacturer in Burma as well as the Singapore Indian Chamber of Commerce, who certified the origin as Burma, the goods having transited through Singapore. The adjudicating authority has pointed out the discrepancy in the name of the vessel appearing in the two certificates of origin. The certificate issued by PIC shown the name of vessel as MV HTONEYWA whereas the name of the vessel in the Bill of Entry is shown as vessel MV BINTANG HARPAN. On seeing the documents we find that there is no discrepancy. The Bill of Lading got issued by M/s. Transicom shows the following:
Local Vessel M/V HTONEYWA From Rangoon (Berma) Ocean Vessel BINTING HARPAN Port of Loading Singapore Thus, we find no discrepancy as the goods were transited/transshipped through Singapore.
5.1. Another discrepancy pointed out is that although the invoice submitted along with Bill of Entry showed the date as 28.3.1984, the invoice shown in the certificate of origin bear a different number and a different date that is 12.3.1984. From the documents, we find that the adjudicating authority has compared the incomparable. The certificate of origin is issued by PIC showing the date of invoice as 12.3.1984 whereas the invoice submitted with the Bill of Entry is issued by the exporter i.e. M/s. Transicom Burma and will naturally be of a later date i.e. on 28.3.1984. On proper appreciation of the documents as well as the fact that the notification No. 321/76 does not require the COO to be issued by any designated authority, in our view the two certificates of origin indicating the COO as Burma cannot be discarded. They must be the accepted and we do so.
5.2. The next issue is to whether the invoice was on CIF basis or not. We notice that the Bill of Lading itself says that freight is prepaid. The L/C which would have been definite proof could not be furnished by the appellant after a gap of almost 20 years. In any case Revenue has not submitted any evidence to show that freight and insurance were paid separately. Revenues case is based on technicalities on account of so called discrepancies some of which we have clarified in the para above. Revenues case is that the COO issued from Singapore does not indicate the invoice number. We note that it indicates the name of the vessel, the number of drums, the weight, the L/C number? all these tally with the particulars in the Bill of Lading. It should not have been difficult for Revenue to co-relate such documents. Further we find that the departure date i.e. 28.3.1984 indicated in the COO issued at Singapore tallies with the date of invoice issued by M/s. Transicom. The adjudicating authority has also stated that whereas the COO issued at Singapore shows the weight of the consignment as 203.26 MT. the COO issued by PIC at Burma indicates the weight as 219.6 MTs. We observe that the very same COO issued at Burma indicates total gross weight -219.6 MT total net weight 203.3 MT. It is clear that the authorities below did not compare documents properly. Otherwise they would have been able to reconcile the discrepancies. Another discrepancy pointed out by the adjudicating authority is in the invoices submitted along with the Bill of Entry and the invoice submitted later. Although, they bear the same number and date, the first invoice does not indicate CIF basis whereas the other copy indicates CIF basis. It appears that when the appellant were asked to submit whether shipment is on FOB or CIF basis, they have added CIF on the copy of the invoice submitted later. Although, this should not have been done but the fact that the copy of invoice submitted later is attested by the Bank, the Bill of Lading indicates freight as prepaid and no evidence has been brought forth by Revenue to show that freight was paid separately, in our view, the benefit must go to the appellant. We find that there is sufficient co-relation between various documents to support the view that the invoice is on CIF basis. Revenue has not been able to verify from the Bank through which L/C was negotiated to prove otherwise. Therefore the declared value merits acceptance and the benefit of notification No. 321/76 is admissible. Consequently, the duty demand is set aside. The question of interest payment therefore does not arise.
6. Appeal allowed.
(Pronounced in court on 7/9/2015) (Ramesh Nair) Member (Judicial) (P.S.Pruthi) Member (Technical) SM.
6Appeal No. C/598/2004-Mum