Custom, Excise & Service Tax Tribunal
M/S. Clariant Chemical (India) Ltd vs Commissioner Of Customs (Import), ... on 31 October, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/86422/2013-Mum. (Arising out of Order-in-Appeal No.12/MCH/AC/GVC/2013 dated 2.1.2003 passed by the Commissioner of Customs (Appeals) Mumbai-I ) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K.Jain, Member (Technical) ============================================================
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============================================================= M/s. Clariant Chemical (India) Ltd. :
Appellant VS Commissioner of Customs (Import), Mumbai :
Respondent Appearance Shri S.N. Kantawala, Advocate for Appellant Shri K.S. Mishra, Additional Commissioner (A.R) for respondent CORAM:
Mr. S.S. Kang, Vice President
Mr. P.K. Jain, Member (Technical)
Date of hearing : 31/10/2013
Date of decision : 31/10/2013
ORDER NO.
Per : S.S. Kang
Heard both sides.
2. Appellant filed this appeal against the order passed by Commissioner (Appeals) Customs, Mumbai.
3. Brief facts of the case are that appellant is registered with SVB for examination of valuation of the goods imported by from foreign supplier M/s. Clariant International AG. Switzerland including all associates and affiliates worldwide. The appellant had entered into an agreement with foreign supplier for purchase of know-how for upgrading/modernization plan for manufacturing leather chemical products. Earlier matter went up the Honble Supreme Court the Honble Supreme Court vide order dt. 29.3.2007 remanded the matter to the adjudicating authority for de novo adjudication in accordance with the Customs Valuation Rules 1988. The Honble Supreme Court further held that the adjudicating authority will not only go by the apparent tenor of the agreement, but also examine the necessary facts and decide the matter in accordance with law. In pursuance to the order passed by the Honble Supreme Court the adjudicating authority decided afresh and accepted the invoice value and decided in favour of the present appellant. The order was reviewed by the Revenue and Commissioner (Appeals) vide impugned order is set aside the adjudication order, on the ground that the Technical Collaboration Agreement has not been produced even at the appellate stage to justify the claim.
4. The contention of appellant is that the Technical Collaboration Agreement is the subject matter of the proceeding which traveled upto Honble Supreme Court and in the grounds of appeal filed before the Commissioner (Appeals), the Revenue has relied upon the terms and conditions of the agreement in question which is evident from para-4 of the grounds of appeal. In these circumstances, the impugned order is not sustainable as the Commissioner (Appeals) has not looked into the terms and conditions of the agreement and decided the appeal.
5. Revenue relied upon the finding of the lower authority.
6. We find that the Commissioner (Appeals) in the impugned order held that the Technical Collaboration Agreement has not been produced even at the appellate stage. We find from very beginning the terms and conditions of the agreement is in dispute. The order passed by adjudicating authority is reviewed by the Revenue and appeal was filed before the Commissioner (Appeals). In the grounds of appeal, the Revenue was specifically relying upon the terms and conditions of the agreement in question. In view of these facts, it cannot be said that the Technical Collaboration Agreement was not on record. In these circumstances, we find matter requires reconsideration by Commissioner (Appeals). The impugned order is set aside and Commissioner (Appeals) to decide the issue de novo after taking into consideration the terms and conditions of technical collaboration agreement which is already on record and after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand.
(Dictated in court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President Sm ??
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