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2016 (5) TMI 188 - CESTAT MUMBAI

2016 (5) TMI 188 - CESTAT MUMBAI - TMI - Determination of assessable value of goods imported - Agent agreement between the respondent and its associates - Adjudicating authority held that the value of the goods which are imported by the respondent needs to be loaded by an amount paid as commission to them. Revenue submitted that identical goods from the same supplier was charged higher price and relied upon Rule 9 of Customs Valuation Rules. Also there cannot be two different prices/value for id .....

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ndings of the first appellate authority and the impugned order is upheld as correct and legal. - Decided against the revenue - Appeal No. C/156/05-Mum - Order No. A/86889/16/CB - Dated:- 18-3-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri D.S. Mann, Assistant Commissioner (A.R.) For the Respondent : None ORDER PER: M.V. RAVINDRAN: This appeal is filed by the Revenue against the Order-in-Appeal No. 80/2004(JNCH) dated 30.09.2004 pass .....

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the goods which are imported by the respondent needs to be loaded by an amount paid as commission to them. Aggrieved by such an order, respondent preferred an appeal before the first appellate authority. The first appellate authority set aside the Order-in-Original and allowed the appeal of the respondent-assessee. 3. None appears on behalf of the respondent-assessee. Since the matter is of 2004 and lies in narrow compass, we take up the appeal for disposal. 4. Heard the learned Departmental Rep .....

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vidence which was produced by the respondent himself in the form of invoices dated 09.05.1999 and 11.07.1999. It is his submission that as per Rule 9 of the Customs Valuation Rules, price actually paid or payable, namely cost and services to the extent incurred by the buyer but not included in the price actually paid or payable for the imported goods namely commission and brokerage except buying commission. It is his submission that there cannot be two different prices/value for identical goods .....

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in fact getting individual/specific commission which is not available for third party. Therefore percentage of commission scheduled in annexure Aof the agency agreement is addable to products scheduled. It is seen from the impugned order that the findings are based mainly on the appellants admission that commission payable to them is not separately indicated by the supplier, the same even though was in the nature of buyers commission paid by the importers. It is an admitted position that as per .....

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r contemporaneous imports both by themselves as well as that by the third party for which commission was due to them. This fact has not been assailed by the lower authority except to say that the sufficient proof has not been submitted. The appellants have submitted the details justifying the difference in price as their indenting commission for the third party import. The appellants have also submitted that there was no standard price lists maintained by ECIS. None of these submissions have bee .....

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that the relationship in any way has influenced the transaction value as declared by the appellant or that the price declared was not at arms length. It has not been established that Exxon, USA is directly or indirectly controlling the affairs of the appellant. No mutuality of interest has been established. On the question of relationship, mutuality between the seller and the buyer is an essential aspect which has to be established whenever revenue wants to ignore the transaction value. This po .....

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e price of goods imported as shown in the invoice should be taken as the assessable value. Commission received by the appellant on sale effected to actual users can not go to load the value shown in the invoices issued in the name of the appellants. The Hon ble Tribunal in the case of Mittal International [2002 (145) ELT 667 (Tri-Del)] relying on the case of Poly Olefins Industries Limited [2000 (124) ELT 380] held that the appointment as agent does not make it a related person of the supplier. .....

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