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TMI Blog2019 (2) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 styrene Monomer ICIS North East Asia CFR Spot price low (b) Raw material cost: 0.29* ICIS C2 North East CFR Spot Average prevision moth + 0.79* Platt's C6 FOB Korea Spot Average prevision Month + Freight" 3. Later on 19.12.2008 article 7.1 of the said agreement was modified and replaced with the following. "The price for PRODUCT purchased by BSPL shall be equivalent to the prevision to (2) weeks average of ICIS publications of ICIS NEA CFR Spot Low minus 1.5 % For the purposes of this clause, the previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 870 1,165 1,165 1,165 1,243 24-Oct-08 720 950 950 950 1,058 31-Oct-08 530 795 795 795 872.50 872.50 6. Ld. Counsel argued that there was a delay in the shipment and during that period the price of the product fails from USD 1333 PMT, USD 550 PMT. He argued that in this background the impugned order has rejected the transaction value of USD 872.50 PMT without any reason. He argued that the price was a negotiated price as can be seen from the exchange of emails between the appellant and the supplier on 20 October 2008 and 26 October 2008. 7. Ld. Counsel relied on the decision of Hon'ble Apex Court in case of Mahindra & Mahindra Ltd-1995 (76) ELT 481 (S.C) to assert that the price declared under Section 14( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 06.10.2008 whereas the e-mail wherein the foreign supplier appears to have accepted the price to USD 872.5 PMT is dated 26 October 2008. He further argued that the appellant claim that the price revision of occurred due to delay in shipment is also mis-placed, as per the purchase order the shipment was not excepted to arrive before 24 -25 October 2008. 9. We have gone through the rival submissions. We find that the appellant are claiming that they had placed an order on 06.10.2008 on the foreign supplier BSEAP for supply of 2,380.969 MT of Styrene Monomer bulk at a price of USD 872.50 PMT. The said consignment as per the purchase order was expected to arrive on 25.10.2008. At the material time the price of Styrene Monomer bulk was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m with the purchase order. In terms of the price calculation formula worked out according to the supplemental contract dated. 27.01.2006, the weekly price applicable for dispatches on 09 October 2008 would have been USD 1333.000 PMT considering the ICIS price, raw material cost, delta value and various other variables and parameters. Since, the average price or USE 872.50 PMT of the product during the week of arrival of ship at discharge port and the week preceding that were not available to the appellant on the date of placement of the purchase order, it was impossible for the appellant to have placed an order for supply of Styrene Monomer at USE 872.50 pmt as early as on 06.10.2008. Similar is the case for the supplier M/s. BASF South Eas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch below the raw-material cost which was one of the prime ingredients for arriving at the formula price calculation for imports under the contract. The changes made in terms of Article 14.2 of the supply contract in Article 7.1 vide supplemental contract dated 19.12.2008 further makes it crystal clear that the change in pricing pattern came into existence only for the products supplied on or after 19.12.2008 and not prior to that. In the instant case the supply was effected much prior to 19.12.2008 and therefore the revised pricing pattern would have no applicability fo the subject imported goods. 5.8 The terms of the contract have to be meticulously applied in case of imports when the contract itself is the sole basis to determine the du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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