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2011 (2) TMI 1073 - AT - CustomsAssessment of goods (polished, vitrified porcelain tiles) imported from China - whether liable to be assessed to countervailing duty on the basis of MRP (with abatement of 43% from the MRP) in terms of Section 4A as claimed by the appellant or otherwise in terms of Section 4 as claimed by the respondent - Appellant have imported the goods meant for sale to the institutional/ industrial consumers who use such tiles for construction purposes. They do not sell the same further in the market - Held that:- Fact to be found is whether the goods imported by the respondent by declaring that they were meant for sale to industrial/institutional consumers and not for retail sale were actually sold to such consumers. The finding of the original authority on this question of fact is in favour of the Revenue and that of the appellate authority on the same question is against the Revenue. Apparently, this has resulted from non-application of mind on the part of the Commissioner (Appeals), Commissioner (Appeals) misunderstood certain marks found on the packaged commodity. The imported packages had come with the mark "imported and marketed by M/s. NITCO Tiles Ltd.". It appears, the words "imported and marketed" were misunderstood by the appellate authority as "imported and marked". This misunderstanding lead the appellate authority to the erroneous notion that the importer had to be treated as 'manufacturer' in India on account of having "marked" the packages. This mistake bred other mistakes also, like pressing into service Rule 2(h) - as the burden of the respondent to establish before the adjudicating authority that the provisions of Chapter II of the SWM (PC) Rules are not applicable to the packaged commodity imported by them the respondent should get a reasonable opportunity of adducing evidence and of being heard so that the original authority can take a decision afresh.
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