TMI Blog2023 (9) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... That the latter was preferred is not without jurisdictional competence and setting aside of order is pre-requisite for such re-consideration - this remand is not found to be contrary to the decisions in re DJ Malpani [ 2007 (10) TMI 410 - BOMBAY HIGH COURT] or in re Dell International Services India (P) Ltd [ 2016 (5) TMI 114 - KARNATAKA HIGH COURT] and the only issue for consideration here is only prejudice the appellant herein arising from remand. The communication that started the dispute was not rendered within the framework of a show cause notice and any action to the detriment of an importer must comply with section 17 or section 18 of Customs Act, 1962; likewise, any recovery will take recourse to section 28 of Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation charges, manufacturing overheads, promotional expenses, selling distribution cost and profit are correct. 8. Comparison of two vaccines Priorix and Hiberix in the impugned order showed unexplained variance w.r.t. packing cost, transportation, promotional expenses and S D expenses. It was therefore, necessary to examine the balance sheet. 9. There was an unexplained difference of Rs. 105 in the MRP of the two vaccines when their ex-factory cost was almost same (about Rs.124), 5. The said ground of appeal is in the nature of objection which can be relooked at by the OA. As stated herein above, the OA has recorded at para 2 3 of the OIO that the importers had submitted accounts including audited accounts of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a for a fresh decision by the original authority. 3. Learned Counsel submits that the observation that 4.7 From the above, it is clear that OA has surmised the correctness of the price in view of the supply agreements between the supplier and the importer, the market conditions prevailing in respect of these vaccines, margin of profit and the expenses connected to manufacturing and marketing. The transaction value in the present case have been accepted on the basis of sale of Goods to urelated buyers in India. I find that at para 2 and para 3 of the impugned order in original the Original Authority has recorded the documents submitted by the importer which includes audited balance sheets for last three years apart from other relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble High Court of Karnataka in Dell International Services India (P) Ltd v. Assistant Commissioner of Income Tax, Bangalore [2016 (382) ITR 37 (Karnataka)] holding that 9. We observe that no proper reasoning has been given by the Tribunal for exercising the power of remand. The directions issued by this Court while remanding the matter to the Tribunal is not considered by the Tribunal in the true spirit. It was the obligation cast on the Tribunal to examine the case of the Assessee in the light of the Judgment of the Apex Court in Rotork. Controls case (supra) and to come to a decision. But, remanding the matter to the Assessing Officer is in disregard to the Judgment of this Court and as such we are of the opinion that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he import transaction from those intrinsic elements. The finding of the Special Valuation Branch was based on deductive value , furnished by the appellant herein, approximating the import price and the non-ascertainment of correctness of the elements in the furnished computation was the flaw sought to be rectified in appeal. Hence the direction of the Tribunal to consider the plea as laid out in the appeal. 7. It is evident that facts would have to be ascertained and the only available options for the first appellate authority were to call for the balance sheet and ascertain veracity of the elements or to have such exercise undertaken. That the latter was preferred is not without jurisdictional competence and setting aside of order is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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