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2017 (1) TMI 207 - CESTAT MUMBAI

2017 (1) TMI 207 - CESTAT MUMBAI - TMI - Valuation - 100% subsidiary - related party transaction - enhancement in the value by 120%, on the ground that supplier and the respondent are related person, the value charged by the supplier to the third party supply was 120% more than the value charged to the present appellant - Held that: - the Ld. Commissioner has with proper application of mind addressed the issue not only considering the fact of aspect of commission but also on law point - the appe .....

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the third party as bench mark as done by the lower authority, in the first item case, the discount for the appellant comes to 23.3%, and in the second item case it comes to 22.3%. for the third items, no item number has been mentioned, hence it is a matter of question whether they are identical. The findings of the lower authority appears to be factually incorrect. - Enhancement of value, by lower authority is set aside - appeal dismissed - decided against Revenue. - C/ 1157/05 - A/94230/16/ .....

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ho enhanced the value by 120% of the declared invoice value of the supplier. The enhancement of the value is on the basis that supplier and the respondent are related person, the value charged by the supplier to the third party supply was 120% more than the value charged to the present appellant. Being aggrieved by the order in original No.38/2005 dated 07.03.2005, the respondent filed an appeal before the Commissioner (Appeals) who allowed the appeal of the respondent, hence the revenue filed t .....

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ri Sanjay Singhal, Ld. Counsel Appearing on behalf of the respondent submits that the Ld. Commissioner (Appeals) dealt with the matter in detail and given findings not only on the law but also on facts and came to conclusion that the enhancement of the value on the basis of some stray imports by the independent importers. He submits that the respondent is wholesale distributor of the goods supplied by the foreign supplier. On the import made by the independent importer also the respondent gets t .....

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g Systems P Ltd Vs. Commissioner of Customs 2003(151) ELT 458 5. Commissioner of Customs Vs. Lenz Mechatronics P Ltd 2015(151) ELT173 6. Geissel, India P Ltd. Vs. Commissioner of Customs 2015 (315)ELT 479 4. We have carefully considered the submissions made by both the sides. We find that the revenue seeks to uphold the loading of 120% on the declared invoice value of the respondent only on the ground that the import price of the third parties is higher and taking that as base value sought to be .....

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e the same. Only on the basis of some stray cases of imports by the third parties, the import value of the respondent's import can not be enhanced. In the judgments relied upon by the respondent, it is clearly held that distributor's import price and import price of independent importer will be acceptable separately and in such case the distributor's price can not be influenced by the import of independent import. 5. On careful perusal of the impugned order, we find that the Ld. Comm .....

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ants price, on average the third party price is 120% more than that of the appellants, hence the appellant's import have been enhanced by 120% for assessment. As per the appellants they are acting as Distributor for the suppliers products as per Agreement d 14th April, 2000. As per the said agreement the price applicable for Distributor shall be as per Distributor price list. As per clause 5.1, for any commercial reason if any third party purchases YUDO products from the seller directly or s .....

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tement on commission paid to them by the supplier, in which the said amount is reflected at Pg.27 of the memorandum. The appellants have also submitted confirmation from the Bank regarding payment of the commission. The appellants have relied upon Tribunal decision in the case of Hewlett Packcard Ltd, 999(108)ELT221. In the said case it was held by Tribunal that related party importing goods in bulk for stock and sale and individual consumers importing small quantity for actual use, both constit .....

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ctivities shall not be added to price payable. In the Tribunal decision of Premnath Diesels Pvt. Ltd, 2000(122)ELT 458, the importer was acting as Distributor for the supplier, besides acting as indenting agent for third parties for the goods of the said supplier . As dealer the importer was getting the goods at a lesser price. In case of goods imported by third parties, the importer was getting commission from the supplier or the third party was directed by the supplier to pay the importer in l .....

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ging Systems, it was held that distributor are recognized to be on a different level compared to the individual importer. I find these decisions are applicable to the present case. In this case the appellants are importing goods from the supplier for stock and sale basis, and the same can not be compared to third party stray imports in view of Tribunal decision in the case of Hewlett Packard Ltd referred earlier. The appellant is acting both as the Distributor of the supplier's products, and .....

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