TMI Blog2020 (3) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... tantamount to presenting the proper officer from applying its mind to finalization of an assessment and, indeed, to interfere in an assessment that is yet to fructify. The order of the Joint Commissioner of Customs is also not of such detriment to the appellant as to warrant circumventing of the requirement of mandatory pre-deposit for entertaining appeals under Section 128, or Section 129 of Customs Act, 1962. The proceedings initiated, and concluded, by the Joint Commissioner of Customs poses no detriment, as noted in the impugned order, till an import is effected or a notice for recovery of duties on past imports has been issued. Admittedly, these events have not taken place and the appellate authority has acted in haste to take up the appeal for disposal prematurely. An order emanating from the authority invested in Special Valuation Branch of Custom houses under administrative instructions of Central Board of Excise Customs are not orders which are capable of complying with the pre-requisites for filing of an appeal in Chapter XV of Customs Act, 1962. The first appellate authority erred in taking up the appeal preferred before it despite non-compliance of Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein. All that we can gather on the validity of the action of the Joint Commissioner of Customs is that this system has been prevalent in the past, and continues to prevail, in Custom houses. 2. The loading factor of 9.82%, 10.77%, 16.53% and 12.32%, for each year between 2011 and 2014, has been determined as a proportion of the royalty paid to M/s. Elica SpA, in pursuance of Technical License and Trademark License Agreement dated 12 January 2011, at 3% of net sales of the products covered by the said agreement to the total value of imports effected from related suppliers. The appellant has computed the loading factor for 2015 and 2016 at 17.8% and 14.03%. Of particular interest in this order of loading is the certification of conformity of the transaction value under Rule 3(3)(a) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 on goods imported from related persons in terms of Rule 2(2) of the said Rules though requiring adjustment as provided for in Rule 3(1) of the said Rules. It would also appear that such an exercise was undertaken in August, 2011 without any addition and, being subject to review on expiry of three years, was taken up again in 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any authority conferred on the Joint Commissioner of Customs to venture into past assessments and issue directions for initiating proceedings under Section 28 of Customs Act, 1962. Furthermore, the said circular envisages certain safeguards in the form of accountability at senior levels before undertaking such investigations. It is not clear if the review, undertaken on expiry of the earlier period of ascertainment, can evade compliance of such accountability. Over the years, the probable consequence of unwarranted and purposeless investigation by Special Valuation Branch on the smooth flow of regular import has led to fine-tuning of the accountability mechanism and Circular No. 5/2016-Cus., dated 9th February, 2016 of Central Board of Excise Customs has clarified the synergy that is desired from the symbiotic relationship between assessing authority and the investigating branch with no dilution of the statutory predominance of the former. From all of this, we deduce that the order of the Joint Commissioner of Customs is but tentative, and preliminary, with consequential action to be initiated in accordance with law by the proper officer. In so articulating, we can draw n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prosecute the appeal notwithstanding lack of compliance. In justification, it was pleaded that the absence of a demand, or quantification, in the impugned order, and the preceding one, precluded such compliance. In our view, this does not appear to be an order which is of detriment to the appellant herein until the statutory authority for assessment, and for recovery, initiates appropriate action. The order impugned before us has been decided by the first appellate authority on conclusion of proceedings under Section 128A of Customs Act, 1962. Though Section 129E of Customs Act, 1962 establishes the jurisdiction of Commissioner of Customs (Appeals) to entertain an appeal only upon deposit of a specified percentage of the duty, penalty or duty and penalty, as the case may be subject to a ceiling of ₹ 10,00,00,000, it is seen from the impugned order that, noting the lack of compliance thereon, it has been recorded that 3. The present appeal is against the order of includability of royalty in assessable value of the goods imported by the appellant and as there is no quantification of the exact duty in the impugned SVD order and in pursuance of the Para 19(iii) of the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant as to warrant circumventing of the requirement of mandatory pre-deposit for entertaining appeals under Section 128, or Section 129 of Customs Act, 1962. 10. Every demand for unpaid tax/duty is not an end in itself. It must be implemented by appropriate order, and action, for recovery of such adjudicated, or confirmed, dues. The inoperability of an adjudication, or an appellate, order that upholds demand of tax/duty would render the entire exercise to be academic which tax authorities should not be wasting their time on. The proceedings initiated, and concluded, by the Joint Commissioner of Customs poses no detriment, as noted in the impugned order, till an import is effected or a notice for recovery of duties on past imports has been issued. Admittedly, these events have not taken place and the appellate authority has acted in haste to take up the appeal for disposal prematurely. 11. The Hon ble Supreme Court has, in M/s. Tecnimont Pvt. Ltd. v. State of Punjab Others [order dated 18th September, 2019 in Civil Appeal No. 7358 of 2019 arising from Special Leave Petition (Civil) No. 27072 of 2016 - 2019 (29) G.S.T.L. 737 (S.C.)], in determining the challenge to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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