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TMI Blog2011 (3) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... uestionnaire 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 with the letter, they also submitted Memorandum and Articles of Association of the Company. They stated that there was no agreement between them and the supplier-company and that purchase orders were placed on consignment-to-consignment basis. The importer also filed certain other documents including accounts for 2 years from the date of incorporation, bill of entry etc. They produced the following documents: (i) Memorandum and Articles of Association; (ii) Reply to questionnaire; (iii) Copy of price list; (iv) Copies of balance sheets for the years 2001 and 2002; (v) Statement No.1 and statement No.2 regarding the details of imports. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 photocopies of some loose sheets and did not disclose the name of the currency and also did not show whether the price list was their own price list or the supplier s price list, the Dy. Commissioner refused to accept the price shown in the price list as the true transaction value in the absence of documentary evidence to demonstrate such value under Rule 4(3) (b) of the Customs Valuation Rules. The conclusions arrived at by the Dy. Commissioner are as follows: In view of above discussion and findings, I order to accept the invoice price by loading 50% on the declared invoice price. However if contemporary impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that this is the profit earned Kemper for all their sales transactions, whether made to group companies or not. It is further stated that Kemper Germany adopts the same basis for arriving at the sale price of the goods sold to other subsidiaries situated in other countries also. A comparative statement of prices charged by Kemper, Germany to other subsidiaries located in China and Japan is given in Annexure-4. The said annexure also gives the price charged by Kemper, Germany in respect of sales made to the appellants. The sale invoices which formed the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 submits that it is incumbent upon the assessing authority to determine the mutual interest of the assessee and the supplier in the business of each other. The assessee cannot be held to be related to the supplier merely by reason of being a 100% subsidiary of the latter. Section 14 of the Customs Act as it stood prior to 10.10.2007 required many factors to be considered by an assessing authority while determining the mutual interest of the buyer and the seller in the business of each other. It is submitted that the Dy. Commissioner (GVC) in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent 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 necessary that all the requisite documentary materials should be available to the officer in GVC dealing with valuation of the goods. In this view of the matter, we are inclined to allow the amendment application. It is ordered accordingly. 7. As submitted by the learned counsel, the lower authorities held that the appellant was related to the foreign supplier in terms of Rule 2(2) of the Customs Valuation Rules. The authorities, however, could not properly examine the question whether the relationship influenced the price of the goods imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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