TMI Blog2011 (3) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed by the Dy. Commissioner of Customs (GATT Valuation Cell) (GVC), Mumbai in respect of the goods imported by the appellant from their holding company in Germany, namely, M/s. Kempher System GmbH Co. KG. The appellant-company, 100% subsidiary of the supplier-company, imported several consignments water-proofing compound from the German Company in 2001 and 2002 after getting registered with the GVC. A questionnaire was issued by GVC to the importer for purposes of the Customs Valuation Rules 1988 read with Section 14 of the Customs Act. As there was no reply to the questionnaire for quite some time, reminders were issued from time to time calling upon the importer to reply to the questionnaire and to produce the required documents. Ultimately, in a letter dt. 30.9.2003, the importer promised to furnish the required details on 10.10.2003. Accordingly, the Dy. Commissioner (GVC) called upon the importer to appear in person and make submissions and produce documents on 10.10.2003. The party did not appear on that day. Subsequently, however, in a letter dated 11.10.2003 (submitted on 23.10.2003), the importer offered to file their written submissions at the time of hearing. Along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liers; (c) Value of standard bought-out components procured in India; (d) Value of other components procured in India; (e) Ex-factory value of the goods; (f) Royalty, net and gross, payable or paid. (g) Annual reports. The appellant did not respond to the Dy. Commissioner s letter calling for the above documents. They also did not appear before the Dy. Commissioner for personal hearing as per notice dated 17.12.2003. Subsequently also, several notices of personal hearing were issued to the appellant but there was no response, again. Ultimately, in a letter dated 4.3.2005, the Dy. Commissioner offered three alternative dates for personal hearing, but none was availed. 2. In the above circumstances, the Dy. Commissioner (GVC) proceeded to finalize the matter on the basis of whatever materials were available on record and in view of the relevant provisions of the Customs Valuation Rules. He passed an order wherein he held that the importer and the foreign supplier were related persons in terms of Rule 2 (2) of the Customs Valuation Rules 1988, the former being a 100% subsidiary of the latter. As the price list submitted by the importer was in the form of ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n application for incorporating additional grounds. Additional grounds 5 to 12 are sought to be incorporated in the memorandum of appeal. These additional grounds read as under:- The appellants are a wholly owned subsidiary of M/s. Kemper, Germany. The appellants are engaged in the trading of construction chemicals (including water proofing chemicals and floor coating chemicals) falling under Chapter Nos.32/39/56 of Custom Tariff. The price is charged by Kemper, Germany from the appellants on the basis of printed price list. A copy of the price list is enclosed as Annexure -2. The price charged from the appellants by Kemper, Germany consists of (a) cost of raw material + (b) manufacturing cost + and profit. The profit considered by Kemper, Germany is 8% on the sale price which is inclusive of all costs. A certificate dated 29.8.2008 issued by Kemper, Germany is enclosed as Annexure-3. This certificate categorically states that the sale price consists of cost of raw material + all direct and indirect costs profit of 8%. The details / elements of costs taken into account in the sale price are listed in the certificate. The appellants submit that the appellants are informed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the appellants to Kemper, Germany or to anybody else towards the sale price of the goods. In other words, only the price indicated in the invoice is remitted, that too, through banking channels. The order dated 31.3.05 by which loading of 50% was ordered by the SVB is arbitrary and without any basis. The rule under which the value has been determined has also not been indicated. Hence, the impugned order is vitiated . The learned counsel for the appellant, moving the above application, submits that the material information which could not be furnished to the original authority are being furnished as annexures to the additional grounds and that the order passed by the Dy. Commissioner without having occasion to consider these materials is liable to be set aside for the purpose of a remand of the cases. It is particularly submitted that the view taken by the Dy. Commissioner on the relationship between the appellant and the foreign supplier under Rule 2(2) of the Customs Valuation Rules is faulty. Claiming support from the Tribunal s decision in Modi Senator (I) Pvt. Ltd. Vs. C.C. (Imports General), New Delhi 2009 (247) E.L.T. 313 (Tri.-Del.), the learned counsel subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atural justice was denied to them by the original authority. He is, however, not opposed to the amendment application being allowed. 6. After considering the submissions, we are not impressed with the plea of negation of natural justice, which is contained in ground No.3 of the appeal, wherein the appellant raised the grievance that they were not offered sufficient opportunity to explain their case. This grievance is ill-founded inasmuch as the detailed order passed by the Dy. Commissioner (GVC) has all eloquently disclosed the indifferent approach of the assessee vis-a-vis repeated opportunities having been given for production of documents and personal hearing. Some of the documentary materials requisitioned by the Dy. Commissioner (GVC) have been produced before us as annexure to the additional grounds of appeal. These materials, though in existence at the material time, were not produced before the assessing authority. Even in the present application, there is no explanation as to why these documents could not be produced when requisitioned by the Dy., Commissioner (GVC). Nevertheless, in a valuation dispute arising out of a GVC order having recurring effect, it is necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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