TMI Blog2019 (9) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable and is liable to be set aside. Penalty set aside - appeal allowed - decided in favor of appellant. - C/30181/2019 - A/30604/2019 - Dated:- 30-9-2019 - MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri Karan Talwar, Advocate for the Appellant. Shri A.V.L.N. Chary, Authorized Representative for the Respondent. ORDER 1. This appeal is filed against Order-in-Appeal No. VJD-CUSTM-PRV-APP-166-18-19 dated 31.10.2018. 2. Heard both sides and perused the records. Learned counsel for the appellant submits that they have imported goods and paid the appropriate amounts of customs duty including value of goods and 1% landing charges as applicable. They also had separately incurred demurrage charges and on being poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Valuation (Determination of Price Imported Goods) Rules, 2007 and prayed to declare it to be ultra vires the provisions of Section 14 of the Customs Act 1962 (for short, 'the Act'). 13. We have heard learned counsel for the parties. It is well-settled principle of the statute that while interpreting a statute, one has to go by the scope and object of the principal Act. Under the principal Act, while amending it on 10 th October, 2007, proviso has included the costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrage charges itself is not sustainable. However, they have already paid customs duty and they are not pressing for setting aside the same. He only prays that the penalty imposed under section 114A may be set aside. 4. As an alternative argument he would further submit that in the case of M/s Wipro Ltd [2015 (319) ELT 177 (SC)] the Hon ble Apex Court has examined in detail whether 1% landing charges can be included in the assessable value at all. Paras 31 and 36 of this judgment are reproduced below: 31. In contrast, however, the impugned amendment dated 5-7-1990 has changed the entire basis of inclusion of loading, unloading and handling charges associated with the delivery of the imported goods at the place of importation. Whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual cost. Addition of 1% of free on board value is thus, in the circumstance, clearly arbitrary and irrational and would be violative of Article 14 of the Constitution. 36. We are, therefore, of the opinion that impugned amendment, namely, proviso (ii) to sub-rule (2) of Rule 9 introduced vide Notification dated 5-7-1990 is unsustainable and bad in law as it exists in the present form and it has to be read down to mean that this clause would apply only when actual charges referred to in Clause (b) are not ascertainable. 5. He would submit that the Hon ble Apex Court has held that 1% landing charges can only be included if the actual cost incurred towards landing are not ascertainable. Wherever the actual cost incurred towards la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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