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2015 (12) TMI 1044 - CESTAT CHENNAI

2015 (12) TMI 1044 - CESTAT CHENNAI - 2016 (344) E.L.T. 319 (Tri. - Chennai) - Enhancement of value on the second hand plant and machinery (entire refinery) imported by the appellants under 123 Bills of Entries, and cleared through Chennai, Pondicherry, Karaikal and Cuddalore ports - different approach by different authorities for valuation - Held that:- On perusal of the contract agreement entered with the foreign supplier M/s. UHDE, Gmbh, Germany, we find that it is for the supply of entire re .....

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es as listed in Annexure-B. The entire refinery equipment will be delivered at CIF terms to the Ports viz Chennai, Pondicherry, Karaikal and Cuddalore. As per article 4 of the agreement, the consideration for the supply of the second hand refinery equipment was around 220 million DM. Vide amendment to the said contract agreement dated 09.04.99, it has been enhanced. - Consequent on the finalization of five bills of entries by Chennai Customs, the jurisdictional authorities at Pondicherry, Cu .....

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ermine the value of the second hand machineries in accordance with custom valuation Rules (CVR) read with Board’s Circular, instead adopted the percentage of loading done by the DC, Chennai. Interestingly, we find that the two LAAs passed two contra orders, one upheld the OIO of Cuddalore and other LAA set aside the OIO of Puducherry, resulting in both assessee and revenue are before this Tribunal. It is pertinent to see that the order of DC, Chennai, which is adopted by other three authorities .....

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authority. - Matter remanded back - Appeal disposed of. - C/141/2012, C/323-324/2012 & C/40701/2015 - FINAL ORDER No. 41672-41675 / 2015 - Dated:- 11-11-2015 - Shri R. PERIASAMI, Technical Member And Shri P.K. CHOUDHARY, Judicial Member For the Petitioner : Shri R. Parthasarathy, Adv. For the Respondent : Shri P.R.V. Ramanan, Spl. Counsel And Ms. Indira Sisupal, AC (AR) ORDER Per: R. Periasami, All the three assessees appeals and one Revenue appeal are taken up together for disposal, as the issu .....

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CKD condition covering 123 Bills of Entries in various consignments through Chennai, Pondicherry, Karaikal, and Cuddalore ports. 3. Appeal No. C/324/2012 Out of total consignments, the appellants filed five warehousing Bills of Entries No. 277765 dated 13.09.2000 and No. 16147 to 16150 dated 07.06.2000 in Chennai Customs and the goods were assessed provisionally as per the Commissioners Order no. Misc. 105/99-Enquiry dated 05.11.2009 and allowed for warehousing at their refinery site at Tirucho .....

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dent Chartered Engineer was appointed. The CE after examining the second hand machineries submitted his report dated 28.06.2000 to the Chennai Customs. As per the Chartered Engineers report, the value estimated was more than the declared value. Accordingly, the adjudicating authority proposed to reject the declared value under Rule 3 of CVR, 1998 and proceeded to re-determine the value under Rule 8 ibid, as the same cannot be determined under Rule 4 to 7 sequentially. The adjudicating authority .....

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.07.2012, set aside the adjudication order and allowed the appeal in principle. He rejected the local Chartered Engineers certificate and held that load port CE certificate be considered to determine the assessable value of the second hand machinery as per the Boards Circular F.No. 493/124/86-Cus. VI dated 19.11.87 after allowing depreciation and directed LA that the assessable value may be re-worked for recovery of short duty collected. The appellant preferred the present appeal. Appeal No. C .....

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the value enhancement made by the DC, Customs, Chennai in OIO No. 15051/2011 dated 04.03.2011. Accordingly, he finalized the said B/E with applicable customs duty along with interest. The appellants preferred appeal against this order before the Commissioner (Appeals), Trichy. The lower appellate authority in his OIA No. 19/2012 dated 24.07.12 upheld the OIO and rejected the appeal. Hence, the appellant preferred appeal before this Tribunal. Appeal No. C/40701/2015 6. In this appeal the appella .....

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962 read with Rule 8 and Rule (9) of the Customs Valuation Rules, 1988. The appellant preferred appeal before the Commissioner (Appeals), Chennai and the Commissioner (Appeals) in his Interim Order no. 1/2013 (Cuddalore) (Cus.) dated 10.12.2013 ordered pre-deposit of an amount of ₹ 8,92,13,245/- being 10% of the duty amount and to report compliance on or before 31.12.2013. The same was extended to 31.01.2014 vide amendment to the Interim Order dated 10.12.2013. Against the Interim order of .....

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41/2012 7. The facts are identical to the above appeals. In the present appeal they have imported 95 consignments of plant and machinery for refinery through Puducherry port and filed 95 Bills of Entries. The goods were provisionally assessed and warehoused at their refinery site. The Assistant Commissioner of Customs, Customs Division, Cuddalore in his order No. 10/2011 dated 29.11.2011 finalized the assessments of all the 95 B/Es and rejected the transaction value and enhanced the value to 2.1 .....

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der:- Port of Import Appeal No. Period of Import No. of B/Es Duty involved Rs.) Order in Original Authority who passed the OiO Order in Appeal no and date Authority who passed the OiA Result Chennai C/324/2012 Aug-sep 2000 5 NQ 15051/2011 dated 04.03.2011 DC Customs, Chennai (seaport) C.Cus no OIA754/2012 dated 27.07.2012 CC(A), Chennai OIO set aside and remanded Puducherry C/141/2012 (Revenue) March 2001-November 2009 95 NQ 10/2011 dated 29.11.2011 AC, Customs, Customs Cuddalore OIA No. 06/2012 .....

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red . Hon ble High Court set aside the interim order vide order dt. 8.10.2014 8. Heard both sides. Shri R. Parthasarathy, the Ld. Counsel appearing for all the three assessee s appeals explained in brief the background details of the proposal for setting up a Six Million Tons capacity of Crude Oil Refinery Plant near Cuddalore. He submits that in all the four appeals the supplier is one and the same and they have imported the secondhand plant and machinery of Mobile refinery in CKD in 123 consig .....

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ery equipment is for 220,000,000 DM. Subsequently, the agreement was revised and enhanced to 159,112,600 DM vide amendment to the contract dated 09.04.1999 and the price was revised to 284,112,600 DM. He submits that since there was a delay in shipment, another contract dated 14.11.2006 was signed for packing of equipments annexed at page 190 to 231 of the paper book (in C/323/12) and the consideration @ 10, 100,000 EURO. 9. He further submits that all the B/Es were assessed provisionally and th .....

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authority in his OIO No. 15051/2011 dated 4.3.11 enhanced the value to 2.195 times for all the five consignments. On appeal, the Commissioner (Appeals) had set aside the local CE s certificate and recommended for enhancement of value based on the load port CE certificate and the finalization is still pending with Chennai Customs. He further submits that even though all the 135 consignments relates to plant and machinery of one refinery dismantled and shipped in various consignments from the sam .....

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nai, had rightly set aside the order and held that based on one CE certificate and also based on the Chennai Customs order, the value cannot be enhanced to other consignments imported through other ports. The Revenue preferred appeal. Whereas, the Commissioner (Appeals), Trichy upheld the OIO and rejected their appeal against which they are on appeal. 11. He further submits that the importer (appellant) and the supplier *UDHE) Germany are one and the same for all the 123 B/Es and all the 123 con .....

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re, Karaikal and Nagapattinam Ports, in Tamil Nadu, since all the consignments relates to one refinery and provisionally assessed at the time of import, in order to avoid conflicting decisions by different adjudicating authorities, resulting in further appeal before different Commissioner (Appeals), he pleads that the entire case may be remanded for re-determination of value and finalization of assessment by one competent authority at any one jurisdiction. He also submits that if such remand is .....

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Revenue submitted his preliminary observations. He explained the findings of the Dy. Commissioner, Chennai Customs order and submitted that sufficient grounds exists in not accepting the load port CE Certificates as the same were prepared only at the time of shipment to India. He further submitted that though the Commissioner (Appeals) has set aside the said order, the issue of finalization of assessment is still open. He also submitted that if all the consignments are to be considered together .....

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one single authority, so that the entire issue can be placed before the authority and he can re-examine the issues in denovo. The special Counsel also submitted that since all the 123 Bills of Entries involving value of more than 284 million DM and also the total customs duty involving more than 100 Crores, he suggested that the adjudicating authority should be of the rank of the Commissioner. He also submitted that if this case is adjudicated by the Commissioner, it will result in uniform deci .....

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inery site at Tiruchopuram, Cuddalore, Tamil Nadu and the period of import starts from August, 2000 to November, 2009. 15. On perusal of the records in appeal No. C/324/2012, the Dy. Commissioner of Customs, Chennai Customs port had finalized the assessment of five bills of entries based on the load CE certificate. The LAA set aside the assessment done based on the local CE certificate and directed the LA to re-determine and to consider the load port CE certificate. On perusal of the contract ag .....

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containers and documentation from outside India as per the Annexure-A and includes dismantling, shifting services as listed in Annexure-B. The entire refinery equipment will be delivered at CIF terms to the Ports viz Chennai, Pondicherry, Karaikal and Cuddalore. As per article 4 of the agreement, the consideration for the supply of the second hand refinery equipment was around 220 million DM. Vide amendment to the said contract agreement dated 09.04.99, it has been enhanced. In addition to the .....

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declared the invoice price for each item. 16. We find that even though the said second hand machinery of refinery covered in all the four appeals had originated from a single place (ie. Mobil Refinery, Germany) and a single supplier M/s. UHDE, Germany, the appellant cleared each shipment as independent import under specific invoice with description of item and price for each equipment accompanied by the Load Port CE Certificate. When all the shipments were completed in 2009, the Chennai Customs .....

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ed the cost of packing, shipping freight. It is seen that the LAA in his impugned order set aside the order of the LA and directed him to re-determine the value. By virtue of LAA order, the said B/Es are still pending before DC, Customs, Chennai for finalization of assessment. 17. We also find that consequent on the finalization of five bills of entries by Chennai Customs, the jurisdictional authorities at Pondicherry, Cuddalore and Nagapattinum have taken up the finalization of assessment of th .....

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ing authorities at Puducherry, Cuddalore and Nagapattinam failed to determine the value of the second hand machineries in accordance with custom valuation Rules (CVR) read with Board s Circular, instead adopted the percentage of loading done by the DC, Chennai. Interestingly, we find that the two LAAs passed two contra orders, one upheld the OIO of Cuddalore and other LAA set aside the OIO of Puducherry, resulting in both assessee and revenue are before this Tribunal. It is pertinent to see that .....

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