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TMI Blog2025 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal is dismissed as time barred. 2. Brief facts are that the M/s. Nippon Thermostat Co. P. Ltd., Chennai the Respondent herein had imported raw materials and components from the related foreign supplier M/s. Nippon Thermostat Company Ltd., Japan. The said Order-in- Original was a periodical review of the earlier Order-in-Original No.17911/2011 dated 20.12.2011 which was accepted by the Commissioner imports on 14.03.2012. The adjudicating authority observed that the Indian company and the Foreign Company are related in terms of Rule 2(2) (iv) of the Customs valuation (Determination of value of the imported goods) 2007. The adjudicating authority, after scrutiny of the bills of entry and other relevant documents found that there is no change in the value/valuation pattern between the respondent and the foreign supplier. The adjudicating authority upon noticing a payment on account of royalty @ 3% on domestic sales and export sales subject to the approval of Central Government, then proceeded to examine the 'Financial Technical Assistance and licence Agreement. The adjudicator found, inter-alia, that the agreement does not in any way prevent the respondent from sourcing the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neshram appeared for the appellant and submitted that the Impugned Order-in-Appeal is not legal and proper as per the grounds of appeal preferred. Ld. AR submitted that the Appellate Authority has erred in rejecting the appeal as time barred, since passing of the Review Order within 3 months from the date of Communication of the OIO by the communication of Commissioners under Section 129D(3) is an internal procedural matter and the substantive condition was to file the appeal within 1 month of the passing of the Review Order as per provisions of Section 129(D)(4) of the customs Act, 1962 within the overall time frame of 4 months. The Ld. AR submitted that the appeal filled by the Revenue before the Commissioner (Appeals) is thus in time and the matter may be remanded to the Appellate Authority to take up the case and decide on merits. The Ld. AR placed the reliance in this regard on the decisions in:- (a) M/s.Monnet & Energy Ltd. {2010 (257) ELT 239 - CESTAT New Delhi} (b) M/s. KAP CONES {2017 (50) STR 194 - SC} (c) M/s.Vasta Biotech P. Ltd. {2024 (7) ΤΜΙ 1530 -CESTAT, CHENNAI} 6. The Ld. Counsel for the Respondent Shri N. Viswanathan supports the dismissal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted foreign supplier the importer is not able to manufacture the finished goods out of the goods imported from related foreign supplier From the order it is also seen that importer has not demonstrated that they have procured goods from any unrelated foreign supplier to manufacture their finished goods. Thus, there appears to exist a direct nexus between payment of royalty and goods imported from related foreign supplier Further, condition of sale may not be expressly provided in the agreement. Hence, it is necessary to examine the agreement to draw on inference as to whether without payment of royalty, the importer was able to import the goods from related foreign supplier or having paid the royalty was the importer free to import the goods from any other supplier This aspect has not been examined and discussed in the order. If the importer is not in a position to import the goods from unrelated suppliers in the case of non-payment of royalty to the related foreign supplier, the royalty warrants addition in the value of the imported goods in terms of provisions of Rule 10(1)(C) & (e) Customs Valuation (Determination of Value of Imported Goods) Rules 2007" Since, the Appellate Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 35 E in para 17 and 18 of the decision in CCE, Delhi III v KAP Cones, 2017 (50) STR 194 (S.C), as under: "17. Vide amendment of 2014, proviso to Clause (3) of Section 35E was added which reads as follows: 'Provided that the Board may, on sufficient cause being shown, extend the said period by another thirty days.' 18. It is apt to note here that the controversy in the instant case is governed by the 2008 amendments. We have referred to the 2014 amendment, as by the said amendment it has been stipulated that the Board has power to extend the time for passing an order under sub-sections (1) and (2) by a period of 30 days. We shall overt to the impact of the same at a later stage." After so stating, the Honourable Apex Court then held in para 25 as under: "25. As stated earlier, we must advert to the proviso inserted in sub-section (3) to Section 35 E by the Finance Acct, 2014. The said proviso has a different purport. It empowers the Board to extend the time of passing of an order under sub-sections (1) and (2) by a period of 30 days. Once an order has been passed by the Board in exercise of the said power under the proviso, there would be no need and necessity to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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