2000 (7) TMI 598

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.... manufacture Zinc from Zinc Concentrate; that they import Zinc Concentrate from abroad under the contracts entered between the Appellants and the foreign supplier; that the price for the imported zinc concentrate is based on a formula; that according to the formula, payment is made only for 85% of the zinc content in the Total Dry Metric Tonne Weight of Zinc Concentrate supplied, at the average of the London Metal Exchange price of zinc during the quotational period, after allowing a deduction of treatment charges; that the Total Dry Metric Tonne Weight of Zinc Concentrate supplied is calculated as the Bill of Lading quantity less moisture content and 0.5% towards transit loss. The learned Advocate, further, mentioned that the Department ha....

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.... price of the goods are drawn up on the basis of international practice whereby the manner of arriving at the weight of the goods and the price thereof is based on a formula specified in the contract; that it has not been disputed by the Department that this is the price that was actually paid by them to the supplier; that no allegations has been made by the Department that there was an under-valuation of the goods as no evidence has been adduced to that effect; that in these circumstances, it is not open to the department to reject the transaction value of the goods. He relied upon the decisions in the case of Mirah Exports Pvt. Ltd. v. Collector of Customs, 1998 (98) E.L.T. 3 (S.C.); Garden Silk Mills Ltd. v. UOI, 1999 (113) E.L.T. 358 (S....

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.... which such goods are ordinarily sold or offered for sale at the place of importation." He, further, mentioned that in the present matters the assessments were provisional as the actual value was not known at the time of importation, that the duty has to be paid by the appellants on the actual quantity imported; that except Section 70 of the Customs Act, there is no provision which provides for remission of duty on warehoused goods; that according to Sec. 70, when any warehoused goods is found to be deficient at the time of delivery from warehouse, duty may be remitted on such deficiency; that Govt. has specified certain commodities under Notification No. 122/63-Cus., dated 11-5-1963 to which provisions of Section 70 apply; that Zinc Concen....

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.... will be calculated as the quantity mentioned in the Bill of Lading minus Moisture content and 0.5% transit loss. It is not the case of the Appellants that they are seeking any remission on the ground of transit loss from payment of duty. The transit loss @ 0.5% rate and moisture content has to be deducted, as per Agreement between them and the foreign supplier, from the quantity mentioned in the Bill of Lading to arrive at the Total Dry Metric Tonne Weight of Zinc Concentrate for the purpose of making the payment of price to the foreign supplier. This is the method prescribed in the Agreement for arriving at the price of the goods imported by them. The Department has not disputed this formula. It is not the case of the Department that the ....