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TMI Blog2013 (8) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Mumbai. 2. The Miscellaneous application is for filing the additional grounds and production of certain documents relating to the sales transaction undertaken by the appellant. This can be considered only at the time of final hearing of the appeal. The COD application is for condoning the delay of 26 days. The delay occurred due to fact that the appellant was directed to file separate appeals instead of a composite appeal which was filed in time. Considering the reason stated as satisfactory, the COD application is allowed. 3. The appellant herein is M/s State Trading Corporation of India Ltd. and they are engaged in trading of various commodities such as edible oils, petroleum products, gold, silver, groceries etc. The appellant under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction is on principal to principal basis and is a simple trading transaction. Further, the mark-ups added by them on their purchase price is already subject to customs duty and hence, Service Tax is not to be leviable on transaction of trading as the transaction is one of sale and not of service. iii) The ld. Counsel for the appellant relies on the Circular issued by CBE & C vide Circular no. 32/2004 dated 11.05.2004 wherein the Board has clarified as follows:- Subject :- Customs Valuation Rules, 1988 - Determination of assessable value for goods sold on high seas - reg. Representations have been received on the Ministry to clarify the manner of determining the value of imported goods imported o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clarified that the actual high-seas-sale-contract price paid by the last buyer would constitute the transaction value under Rule 4 of Customs Valuation Rules, 1988 and inclusion of commission on notional basis may not be appropriate. However, the responsibility to prove that the high-seas-sales-transaction constituted an international transfer of goods lies with the importer. The importer would be required to furnish the entire chain of documents, such as Original Invoice, high-seas-sales-contract, details of service charges/commission paid etc, to establish a link between the first international transfer of goods to the last transaction. In case of doubt regarding the truth or accuracy of the declared value, the Department may reject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /trade margin charged by the appellant is also subject to customs duty as part of the transaction value. If that be so, there is no reason why the same part of the transaction value should be taken out of the customs transaction and subjected to Service Tax under the guise of Business Auxiliary Services. The Board's Circular dated 11.05.2004 also clarifies that the customs duty liability is to be discharged on the value inclusive of trade margin in the case of High Seas Sales transaction. 7. Therefore, following the precedent decision in the case of M/s Indian Oil Corporation Limited (supra), in the present case also, we grant waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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