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CC (Sea-Imp.) , Chennai Versus M/s. Kwang Sung Brake India Pvt. Ltd.

2015 (12) TMI 585 - CESTAT CHENNAI

Valuation - SVB has accepted the invoice price as transaction value - no contemporaneous imports as moulds are tailor made - importer/ respondent and the foreign supplier were related under Rule 2(2) of CVR - Held that:- AC(SVB) in his order after examining the agreements and documents and CA certificate accepted the invoice price as transaction value. When the Revenue initially reviewed the said OIO, we find that there is only one ground on which the Revenue filed the appeal before the Commissi .....

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red the appeal before the Commissioner (Appeals) against the adjudication (SVB) order. Nothing prevented the Revenue to raise any number of grounds when the department reviewed the OIO and filed appeal before the Commissioner (Appeals). - This is the case of SVB order and not confirmation of demand of customs duty under Section 28 of the Act. The adjudicating authority had only determined the relationship between the appellant and supplier and whether any remittance made by the respondent to .....

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3 - Final Order No. 41365 / 2015 - Dated:- 22-9-2015 - Shri R. Periasami Technical Member And Shri P.K. Choudhary, Judicial Member For the Petitioner : Shri B. Balamurugan, AC (AR) For the Respondent : Shri Hari Radhakrishnan, Adv., ORDER Per: R. Periasami, Revenue preferred this appeal against the order of the Commissioner (Appeals). 2. The brief facts of the case are that the respondents imported goods from their principal supplier M/s. Kwang Sung Precision Co., Korea. It was found by the asse .....

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assessing group to finalize all the pending provisional assessment and held that this order is operative for three years up to 23.05.2015. The department reviewed AC s Order and preferred appeal before the Commissioner (Appeals), on the ground that the original adjudicating authority has not compared with contemporaneous import of similar goods before passing the OIO and the original adjudicating authority should have examined the contemporaneous price/value for the subject goods. The Commissio .....

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ng machines which were not manufactured by the principal company but were procured from various manufacturers and supplied to the appellants. He submits that there was no reference of purchase price indicated by the supplier. He also submits that the respondent is remitting the invoice price to the principal company and retaining the profit margin. Therefore, he pleads that the case may be remanded to the adjudicating authority to consider the case in denovo. He also submits that these grounds r .....

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s and also after satisfying the Chartered Engineers certificate on the deductive value arrived had accepted the transaction value. He drew attention to the grounds of appeal by the department against the OIO which is at page 26 of the paper book and submits that the department preferred appeal only on one ground that the adjudicating authority has not compared with contemporaneous import of similar goods before passing the order. He submits that no other ground was raised before the Commissione .....

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Ltd. Vs. CC, Kandla 2014 (302) ELT 303 (Tri. Ahmd.) 2. CCE, Bombay Vs. Mahindra & Mahindra (Auto) Ltd. 2000 (122) ELT 835(Tri.) 3. Warner Hindustan Ltd. Vs. CCE, Hyderabad 1999 (113) ELT 24 (S.C.) He drew the attention of the Bench to Rule 3(3) (a)(b) of CVR and submits that a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to one of the following values ascertai .....

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d that the AC(SVB) in his order after examining the agreements and documents and CA certificate accepted the invoice price as transaction value. When the Revenue initially reviewed the said OIO, we find that there is only one ground on which the Revenue filed the appeal before the Commissioner (Appeals) is that the adjudicating authority has not compared the value of contemporaneous import of similar goods before passing his order. On perusal of the impugned order, we find that para 6 & 7 of .....

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ied to the respondent. However, there is no reference about the price at which the goods were purchased by the related supplier and the price at which the goods were supplied to the Indian importer. (c) Further, in para 6 of the impugned OIA, it is stated that the respondent (importer) remits back the foreign invoice price to the parent company in Korea and the difference between the foreign invoice and the quotation price will be retained by the respondent as profit. It appears that the importe .....

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ments appeal before the Commissioner (Appeals) and the lower appellate authority has examined the grounds of appeal and given clear findings on the contemporaneous imports. Therefore, the department has left out with only one option to contest only on said ground. The Revenue cannot raise new grounds before the Tribunal which was not before the adjudicating authority or LAA. The Hon ble Supreme Court in the case of Warner Hindustan Ltd. Vs. CCE, Hyderabad 1999 (113) ELT 24 (S.C.), wherein the A .....

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. The Assistant Collector, after hearing the appellant, held that the tablets were patent or proprietary medicines classifiable under Heading 3003.19. In appeal by the appellant, the Collector of Central Excise (Appeals) held that the tablets were Ayurvedic medicines classifiable under Heading 3003.30. The Excise authorities went in appeal to the Tribunal and, for the first time, took the stand that the tablets were correctly classifiable under Heading 17.04 as confectionery. The appellant, of .....

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ave not adduced any detailed arguments as to why these tablets can be considered as confectionery item or otherwise although a plea is there from the Collector in the grounds of appeal that the goods are assessable under Tariff 17.04". In our opinion, the Tribunal was quite wrong in these circumstances in allowing the appeal of the Excise authorities and classifying the mint tablets as items of confectionery under Heading 17.04. The correct course for the Tribunal to have followed was to ha .....

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