Custom, Excise & Service Tax Tribunal
Assistant Commissioner Of Customs & ... vs M/S. Alstom Projects (India) Ltd on 12 August, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Appeal No: C/378/2009
(Arising out of Order-in-Appeal No: 3/2009 V-II (D) Cus. dated 25.2.2009 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Visakhapatnam.)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
Assistant Commissioner of Customs & Central Excise
Kakinada.
Appellant
Vs.
M/s. Alstom Projects (India) Ltd.
Respondent
Appearance
Shri M. Vivekanandan, DR for the revenue
Shri G. Venkatesh, Advocate for the respondent.
CORAM
SHRI M. V. RAVINDRAN, HONBLE MEMBER (JUDICIAL)
SHRI P. KARTHIKEYAN, HONBLE MEMBER (TECHNICAL)
Date of Hearing: 12.08.2010
Date of decision: 12.08.2010
FINAL ORDER No._______________________2010
Per Shri P. Karthikeyan,
This appeal filed by the revenue seeks to remand the aspect of valuation by setting aside the order impugned before the Commissioner (A). Vide the impugned order the Commissioner (A) sustained the order of the Original Authority. Facts of the case are that M/s. Alstom Projects India Ltd. (APIL) had imported 421 Nos. of Heat Recovery Steam Generator (HRSG) and accessories under two Bills of Entry No.150 dated 16.3.2005 and No.267 dated 1.6.2005. APIL had registered the contract with the customs authorities and the Bills of Entry were assessed extending concessional rate applicable to project imports classified under CTH 9801 00 13 provisionally. The importers submitted reconciliation statement in respect of the goods imported on 16.4.2007 i.e., after lapse of nearly two years from the date of import of the last consignment on 1.6.2005. Pursuant to audit of the assessment records by the AG, the Original Authority finalized the assessment of Bills of Entry involved at merit rate i.e., 15% BCD and 16% CVD instead of 5% BCD and 16% CVD applicable to goods covered by CTH 9801. As regards valuation, the importers submitted bank remittance particulars from ICICI Bank and other relevant documents. The importers furnished details of payments made towards engineering, development work, design and sketch work, royalties, service charges or any other technical support received, inspection (pre and post installation) paid directly or indirectly to the supplier or any other institution. The assessee also submitted a copy of Order-in-Original No.122/2005 dated 11.1.2005 issued by GATT Valuation Cell, Mumbai which had investigated imports by APIL from the suppliers and had ordered to accept the declared invoice value without any adjustment. The importers had also submitted that no other payment had been made as a condition of sale to the supplier. After hearing the importer, the Original Authority accepted the assessable value declared by the assessee in respect of both the Bills of Entry but demanded differential duty of Rs.2,49,57,985/- as the importer had failed to fulfill Regulation 7 of PIR and had not furnished the reconciliation statement within three months of the last consignment imported as envisaged under the said regulation.
2. The Commissioner (A) noted that the Original Authority had examined if the assessee had received payments towards various items of expenses to the supplier or to anybody else as well as the Order-in-Original No.122/2005 dated 11.1.2005 issued by GATT Valuation Cell, Mumbai before accepting the assessable value declared. And, he upheld the order of the Original Authority. This order is challenged on the basis that the jurisdictional Assistant Commissioner had accepted the invoice value furnished by APIL and finalized the assessments without conducting any enquiry with regard to existence of contemporaneous imports of like goods at higher prices and had not made any efforts to verify the declared value before accepting the same. The Commissioner (A) had not remanded the valuation aspect for fresh assessment by the Original Authority as requested in the appeal filed by the Assistant Commissioner of Customs impugning the Order-in-Original No.98/2007 dated 28.12.2007. The prayer of the revenue is to remand the valuation aspect to the Original Authority for adjudication after examination of contemporaneous imports, if any, and verification of the correctness of the declared value.
3. We have heard both sides.
4. We find that the Original Authority had entered inter-alia the following findings.
The importer had submitted that they have not paid any amounts other than the invoice amounts to the supplier or any other institution directly or indirectly.
4.1 We also note that in paragraph 6 & 7, the Original Authority recorded as follows:
6. The importers have submitted the Bank remittance particulars from ICICI Bank and other relevant documents vide their letter dt.20.03.2007 and final reconciliation statement dt. 12.04.2007 issued by Chartered Engineers Anmol Sekhri & Associates, Mumbai vide letter dt. 16.04.2007. Also, the jurisdictional Central Excise Officer, Division-II, Kakinada was requested vide this office letter N.S. No.106/2005-Cus (Project Imports) dt.11.05.2007 and he has furnished the site verification report vide letter C. No.VIII/48/121/2007 Installation dt.25.09.2007.
7. In order to determine the actual value of the imported goods, the importers have been asked to furnish the details of expenses / payments made on Engineering, development work, design and sketch work, royalties, service charges or any other technical support received, inspection (pre-installation and post-installation) paid directly or indirectly to the supplier or any other institution. They also submitted a copy of Order-in-Original No.122/2005 dt. 11.01.2005 issued by GATT Valuation Cell, Mumbai that investigated the importers case and ordered to accept the declared invoice value without any adjustment with a validity of 3 years. The importers have also reiterated that no other payment made as a condition of sale to the supplier.
5. From the above, we find that the Original Authority had made necessary enquiries before accepting the declared value as the transaction value in respect of both the Bills of Entry. Revenue has no case that the importer had remitted any amount in excess of what was declared and substantiated by remittance particulars from the concerned bank. Revenue also does not have a case that identical goods had been contemporaneously imported at higher value and the value accepted by the Original Authority was not transaction value which had to be rejected. We find merit in the submission by APIL that in the show cause notice basic to the proceedings there was no proposal to reject the transaction value and to enhance the same. The Deputy Commissioner, GATT Valuation Cell, Mumbai had examined the imports made by APIL from the supplier M/s. Alstom Power Turbo Machines, France and its associates and had held that the invoice price of the goods imported was not influenced by any relationship. In the circumstances, we do not find any merit in the appeal filed by the Revenue and reject the same.
(Operative portion of this Order was pronounced
in open court on conclusion of hearing)
.
(P. KARTHIKEYAN) Member (T) (M. V. RAVINDRAN) Member (J) /rv/ 2