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2015 (12) TMI 1043 - CESTAT NEW DELHI

2015 (12) TMI 1043 - CESTAT NEW DELHI - 2016 (343) E.L.T. 209 (Tri. - Del.) - Valuation - Rule 4 - includibility/ non includibility of the expenses on advertising and sales promotion etc. - Related person - transaction value of identical goods - Held that:- It is pertinent to note that the appellant has conceded that the appellant and the supplier being related persons and Revenue was justified in having reason to doubt the truth or accuracy of the value declared. In terms of Rule 12 of the Cust .....

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sement cannot be said to be for the benefit of exporter alone inasmuch as the appellant also would get the benefit thereof and therefore to treat this entire amount as additional consideration for import of goods in order to arrive at the loading factor is not sustainable. - But as stated earlier, we are only concerned with Rule 4 of CVR, 2007 (which the adjudicating authority has used for loading the value) and not with Rule 10 thereof while the contention of ld. DR falls within the ambit o .....

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% is not sustainable in terms of Rule 4 of the CVR, 2007 - Decided in favour of assessee. - Customs Appeal No. 50868 of 2015 - Final Order No. 53695 / 2015 - Dated:- 4-11-2015 - Mr. G. Raghuram, President And Mr. R. K. Singh, Member (Technical) For the Petitioner : Sh. N. Venkatraman, Sr. Advocate with Sh. R. Murlidharan and Sh. Dheeraj Srivastava, Advocates For the Respondent : Sh. Amresh Jain, DR ORDER Per: R. K. Singh: Appeal has been filed against Order-in-original No. SVB/CUS/45/DRPK/2013 d .....

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tributorship Agreement with Richemont Dubai. (ii) It concedes that the supplier was related person and therefore Revenue was justified in having a reasonable doubt about the declared value. (iii) The loading has been ordered on the ground that the price charged by the supplier from the independent parties was12.5% higher than the price charged from the appellant. However, in the table given in para 6 and 14 of the impugned order, it is nowhere indicated whether the price charged from the retail .....

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istributor is substantially different and the distributor is also required / expected to arrange marketing, distribution & domestic logistics, advertising & promotion and keep stock of goods. It cited the judgments in the cases of Komet Precision Tolls India Pvt. Limited vs. CC - 2009 (245) ELT 737 (Tri. Bang.), CC vs. Hewlett Packard Limited 1999 (108) ELT 221 (Tri. Mad.) to support the proposition that to compare the value with the value of contemporaneous imports adjustment has to be .....

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ng the business requirement in India. Out of ₹ 8.32 crores of such expenses, ₹ 3.28 crores were accounted for by amount reimbursed by the appellant to the foreign supplier as these expenses were incurred by the foreign supplier on the appellant s behalf to promote sale of its products in India. As these expenses were reimbursed by the appellant they cannot be considered as consideration towards the imported goods. (viii) The appellant was not obliged to incur these expenses in terms .....

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the distribution agreement the appellant was required to undertake to employ such commercial methods as shall enhance the prestige, integrity and market situation of the products and it was also required to submit to the supplier for approval its marketing and communication budget for the following year which shall include detailed promotion public relations and media plan which showed that the expense on marketing and sales promotion etc. was a condition of sale and therefore, such expenses are .....

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both sides. At the very outset, it is pertinent to note that the appellant has conceded that the appellant and the supplier being related persons and Revenue was justified in having reason to doubt the truth or accuracy of the value declared. In terms of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rule, 2007, this is sufficient to allow determination of value as per Rules 4 (onwards) of the said Valuation Rules. 5. Both sides argued at length about includibility/ .....

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ty has not invoked Rule 10(1)(c) and 10(1)(e) for loading the declared value. Indeed, it is seen that in the discussion and finding portion of the impugned order the Commissioner formulated the issue to be decided in this case as under: (i) Whether the Importer and the Foreign Supplier are related persons in terms of Rule 2(2) of the Valuation Rules, 2007 (ii) Whether the transactions between the Importer and the Foreign Supplier are influenced by such relationship and (iii) Whether any addition .....

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on value has been loaded by 12.5% (only) in terms of Rule 4 of CVR, 2007. Therefore, we do not think it necessary or relevant to dwell on the aspect whether the expenses on advertisement and sales promotion etc. incurred by the appellant are includible in the assessable value in terms of Rule 10 because the adjudicating authority has not invoked the Rule 10 for loading the declared value. 6. As the loading has been determined by the adjudicating authority (only) in terms of Rule 4 of the CVR, 20 .....

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identical goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued shall be used to determine the value of imported goods. (c) Where no sale referred to in clause (b) of sub-rule (1), is found, the transaction value of identical goods sold at a different commercial level or in different quantities or both, adjusted to take account of the difference attributable to commercial level or to the quantity or both, shall be used, provided that such .....

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ods in question arising from differences in distances and means of transport. (3) In applying this rule, if more than one transaction value of identical goods is found, the lowest such value shall be used to determine the value of imported goods. We find that in para 23 of the impugned order, the Commissioner has categorically noted that NIDB data in respect of contemporaneous imports of identical/ similar goods was scrutinized; however, no data for similar/ identical goods of any other brand or .....

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e account of the difference attributable to the commercial level or to the quantity or both and such adjustments is required to be made on the basis of demonstrated evidence which clearly establishes the reasonableness and accuracy of the adjustments. The appellant has been able to demonstrate that as a distributor its imports were at a different commercial level and in much larger quantity compared to the imports made by the individual retailers. From the tables given in paras 7 and 14 of the a .....

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on the basis of these two invoices to infer that the price paid by appellant was 12.5% lower due to relationship is obviously invalid and not in accordance with the requirements of Rule 4 of the CVR, 2007. Further, the prices were compared only for two models of watches and simple extrapolation thereof to all other models of watches for the purpose of revising their values upwards does not have any legal basis for sustainability. The appellant has argued, and reasonably so, that the margin of 12 .....

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complete disregard of the requirement of adjustment to be made for differences in commercial levels as well as in the quantity of goods imported and therefore, we do not find the loading of 12.5% to be in conformity with the requirements of Rule 4 of the CVR. This conclusion is supported by CESTAT decision in the case of Hewlett Packard Ltd. (supra) wherein it was inter-alia held as under: ....In a sale between related persons, the transaction value shall be accepted, whenever the importer demon .....

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levels, quantity levels, adjustments in accordance with the provisions of Rule 9 of these rules and cost incurred by the seller in sales in which he and the buyer are not related; A plain reading of the above provisions shows that when the value of contemporaneous imports are to be considered vis-a-vis imports by related persons, then in view of the proviso to sub-rule 3(b), due account has to be taken of demonstrated difference in commercial levels, quantity levels and adjustments in accordanc .....

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only ₹ 7.5 lakhs with imports of similar goods running into hundreds of crores on 300 or more Bills of Entry per month by HPL. (para 21). Similar view was held in the case of Komal Precision Tolls India Pvt. Limited (supra). 7. Regarding the contention of ld. DR that the appellant was required to incur expenses on advertisement, sale and promotion etc. as per the distribution agreement and such expenses also turn out to be 12.5% which was the discount given to the appellant vis-a-vis the .....

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