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2017 (9) TMI 901

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..... the first round of litigation before the Tribunal as well as before Hon’ble Delhi High Court to support his arguments. At this belated stage, demanding of the documents i.e. comparable chart is nothing but a dilatory tactics just to delay the proceedings as the period under consideration starts from 2003. The original authority has already given the chart by mentioning that the “Concentrated Alcohol Beverages‟ (CAB) was diluted upto 60% concentrate. There is no reason to interfere with the impugned order pertaining to the comparison of the price. It may be mentioned that the Department has not taken care of inflation in the price. The prices available in the year 1999 were applied in the year 2003 to 2011. If the prices have gone down in the subsequent period (under consideration), then the assessee-Appellants have not provided any comparable chart/material in spite of repeated requests by the Bench. When it is so, then the impugned order appears reasonable. Hence, by upholding the impugned order along with the reasons mentioned therein, there is no merit in the appeal filed by the assessee-Appellants. Interest - Held that: - the provisions of sub-sections (3) and (4) .....

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..... ppellants and Shri Govind Dixit, learned DR for the Revenue. 5. The learned counsel for the assessee-Appellants submits that though the value of the impugned goods cannot be determined under Rule 6, even then if Rule 6 is applicable, then it is obligatory on the part of the Department to supply the complete data which was not supplied to the assessee-Appellants. He further submits that the value was taken by the Department in an arbitrary manner on the basis of the value which was available in the year 1999. He also submits that due to the fact that the principal had supplied the goods at the prices available during the period under consideration have now fallen down, so the prices taken by the Department in the year 1999 is not applicable in the instant case. To support his arguments, he relied upon the ratio laid down in the following cases : (i) Seagram Manufacturing Ltd. Vs CC, New Delhi - 2003 (154) ELT 610 (Tri.-Del); (ii) Pernod Ricard India (P) Ltd. Vs CC, ICD, TKD 2010 (256) ELT 161 (SC); and (iii) SRF Ltd. Vs CC, Chennai, 2003 (158) ELT 642 (Tri.-Del) Lastly, the learned counsel submits that the impugned order may be set aside and nec .....

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..... especially, to ascertain the lowest contemporaneous transaction value as per the said Valuation Rules. I find that this contention is totally untenable as the Appellant is aware of the entire facts throughout the disputed period and also was given opportunity by issuing the show cause notice dated 24.07.2003. In fact, it is also observed that the Appellant approached Hon ble High Court for issuance of assessment Order after hearing the importer; which was appropriately followed by the Ld. Adjudicating Authority. The allegations in general and vide para 7 to 28 in specific of the impugned show cause notice are self explanatory about the intention of the Department based upon the given facts and evidences. Hence, it is not the case that the Appellant was not aware of the subject matter and the basis of issuance of show cause notice. 8. The Appellant contested that Rule 5 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and Rule 6 of then Customs Valuation Rules, 1988 are not applicable as the comparable values of the similar goods imported ought to be in close temporal proximity to the goods being valued in order to comply with the said Rules. From .....

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..... ity on 26.07.2010 from the Hon ble Supreme Court of India. The applicability of Rule 6 of the Customs Valuation Rules, 1988 (presently Rule 5 of Customs Valuation of Imported Goods Rules 2007) was upheld and also upheld that adjustment under Rule 5(1)(c) can be granted only on production of evidence establishing reasonableness and accuracy of adjustments. Therefore, the assessment of value of CAB used in manufacture of various brands manufactured by M/s Pernod Ricard done on the lowest value of Contemporaneous import of similar used in the manufacture of branded bottled whisky of comparable standard after adjustment of difference of RSP, of any, of bottle whisky was upheld by the Hon ble Supreme Court. 11. Needless to mention that the Hon ble Supreme Court in the case of Xerographic Ltd. Vs CCE, Ahmedabad, 2006-TIOL-201-SC-CX , has observed that for the term of related person , following three conditions are to be satisfied :- (i) There should be mutuality of interest; (ii) The alleged related person should be related to the assessee as per definition of Section 4(4)(c) given in the Central Excise Act, 1944; (iii) The price charged from the related perso .....

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..... he difference attributable to commercial level or to quantity or both. Their plea is that since the rule itself recognizes that prices differ when quantity differs, reference to discount in the interpretative note needs to be viewed in a wider context because according to the appellant, the expression demonstrated evidence is broader in scope than the term discount , which is used only as an example of such evidence for adjustment. It is also pleaded that tying the concept of adjustment to discount would severely restrict the application of Rule 5 or 6 as a clear evidence of discount‟ may not be available in all cases though on the facts of a particular case adjustment may be needed. In support of the proposition that there is a difference between the concept of adjustment and discount , reliance was placed on the decision of this Court in Commissioner of Central Excise, Jaipur v. Rajasthan SPG. WVG. Mills Ltd. Anr., wherein it was observed that the concept of discount and abatement are different. It was also argued on behalf of the appellant that it is a well accepted norm that higher quantity of goods attract lower prices, which fact has received judici .....

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..... ge, demanding of the documents i.e. comparable chart is nothing but a dilatory tactics just to delay the proceedings as the period under consideration starts from 2003. The original authority has already given the chart by mentioning that the Concentrated Alcohol Beverages‟ (CAB) was diluted upto 60% concentrate. 14. It may be mentioned that the matter has reached to the Hon ble Delhi High Court, but nowhere the assessee-Appellants demanded the documents in question. Hence, at this stage, the request of the assessee-Appellants cannot be acceded to, specifically when the learned DR for the Department did mention that no old record/document is available in this case. 15. In the instant case, the original authority has applied the principle of ejusdem generis as is evident from the chart mentioned in the order-in-original and the same appears reasonable in the peculiar facts and circumstances of the case. 16. Further, identical matter has already been settled by the Hon ble Supreme Court in the case of Pernod Ricard India (P) Ltd. (supra), then we find no reason to interfere with the impugned order pertaining to the comparison of the price. It may be mentioned th .....

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