TMI Blog2019 (2) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Mr. Anand Nainawati (Advocate) For Respondent: Mr. S.N. Gohil (A.R.) ORDER Per: Raju This appeal has been filed by M/s. Basf Styrenics Pvt Ltd against rejection of the declared value and re-determination of value of Styrene Monomer imported by the appellant. 2. Ld. Counsel for the appellant argued that the appellant had entered into agreement will be the Foreign supplier namely BASF South East Asia Pte. Ltd (BSEAP). The agreement with BSEAP was approved by the GATT valuation cell of the Customs House and the said agreement was accepted. In the said agreement as regard price it contained the following clause. Where (a) Prevision 2 weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supply of 2380.969 KG of Styrene Monomer at the rate of USD 872.5 PMT vide order No. 4562004984 dated 06.10.2008. Ld. Counsel pointed out that at the material time the price of the product varied as follows. Date SM: NEA Low Previous Maximum Limit Discounted price: Avg 2 weeks Weekly Applicable price Applicable price for respective despatches Final price for BSPL Round-Off 1 2 3 4 5 11 13 13-Oct-08 1,300 1,341 1,345 1,345 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons, if the value declared under Section 14(1)(a) of the Customs Act,1962 has to be rejected. 8. Ld. AR relied on the impugned order. He argued that on the date the purchase order was made the international price of the product was admittedly between USD 1300 PMT (prevalent on 3rd October 2008) and USD 1030 PMT (prevalent on 10 October 2008). He argued that the purchase order made on 6 October 2008 could not have been made at the price which was practically 40% lower than the prevailing price of the goods. He further argued that the terms and condition of the purchase order clearly indicate that all correspondence must mention the purchase order no and date. He pointed out that the e-mails produced by the appellant do not indicated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. If the price was arrived at as per the agreement entered into between the supplier and the buyer, the price would have been USD 1333 PMT. In this background the Commissioner (Appeals) observed as follows. 5.6 The following facts may also be relevant to examine the contentions of the appellant: a) The purchase order No. 4562004984 for supply of 2380.969 MTs of Styrene Monomer placed by the appellant on M/s BASF South East Asia Pte. Ltd. Singapore on 06.10.2008 shows the Unit price of USD 872.50 PMT b) In the purchase order dtd, 06.10.2008 itself the expected date of arrival was clearly mentioned as 25.10.2008 c) In the Invoice No. 3927418798 dated 09.10.2008 of M/s BASF South East Asia Pte. Ltd. Singapore for supply of 2380.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r evidences therefore, loudly suggest that the purported negotiation and consequent amendment in the price shown to have been completed though subsequent e-mail communications without amending the written contract were nothing but a mere eye-wash by related parties ostensibly to avail the benefit of the sudden crash in price of Styrene Monomer in the international market just after billing and dispatch of the goods on 09.10.2008 and to make ground work for the possible escape from the duty liability on the average of weekly prices of the week in which the product is shipped and the following week (Post Shipment Week) as per the pricing formula agreed upon between the parties in terms of the written contract which was the basis for subject s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, it is within the right of the Department to go into the question of genuineness of the contract and adherence to its terms by the importer. Since the reduced price of USD 872.50 PMT was already appearing in the purchase order as well as in the supply invoice issued as early as on 06.10.2008 and 09.10.2008 respectively, subsequent e-mail communications regarding price negotiations during 20.10.2008 and 26.10.2008 were nothing but preparatory ground work to provide legitimacy to the lower price and breach of contract. The manner in which the terms and conditions of the contract were changed to meet the requirements of the related parties shows that there was a special understanding between the buyer and the seller. Any reason for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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