TaxTMI 
TaxTMI 
2017 (9) TMI 901
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....d taken the value from their own resources which were on higher side. So, the Department raised the demand. Being aggrieved, the assessee-Appellants have filed the present appeal. 3. It may be mentioned that the grievances of the assessee-Appellants have travelled widely. From the record, it appears that earlier the matter had come up before the Tribunal. The Tribunal vide Final Order No.55772/2013 dated 07.03.2013 remanded the matter to the original authority. The matter had ultimately reached to the Hon'ble Delhi High Court where the interim order of the Commissioner (Appeals) was challenged. The Hon'ble High Court vide order dated 31.07.2013 had set aside the order-in-appeal dated 20.06.2013 and directed the assessee-Appellants to deposit Rs. 15 crores. The direction was also given to decide the issue de novo. As per the direction, the issue was decided de novo which resulted in the present appeal. 4. With this background, we have heard Shri V. Lakshmikumaran, learned counsel for the assessee-Appellants and Shri Govind Dixit, learned DR for the Revenue. 5. The learned counsel for the assessee-Appellants submits that though the value of the impugned goods cannot be determined ....
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....e question of bulk discount was rejected. He also submits that the valuation of the goods, in the instant case, was taken on comparison with the similar goods. He also submits that, to substantiate findings, the original authority has prepared the chart, as mentioned in his order. The learned DR further submits that the main grievance of the assessee-Appellants is that, the comparative chart was not provided and that is the violation of the principles of natural justice before applicability of Rule 5 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and Rule 6 of the then Customs Valuation Rules, 1988. In this regard, he submits that the principle of natural justice was not violated especially when the Commissioner (Appeals) in his order has mentioned : "7. It has been argued that the principles of natural justice were violated in terms of non-intimation about the import data of such period for challenging the assessment, especially, to ascertain the lowest contemporaneous transaction value as per the said Valuation Rules. I find that this contention is totally untenable as the Appellant is aware of the entire facts throughout the disputed period and ....
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....where the appeal was dismissed. In the impugned order, the Commissioner (Appeals) has relied upon the ratio laid down in the case of Pernod Ricard India (P) Ltd. (supra) by mentioning that : "f. It was observed that from the same port one more importer namely M/s Pernod Ricard Spirits and Wine Limited have also been importing blended whiskies of higher concentration since 1994 for their brands namely 100 Pipers, Passport and Something Special. In this case also the importer has been importing these whiskies from related person. In this case also the importer had not correctly declared the value of the imported CAB imported from the related party, therefore, provisional assessment was done and the investigation was conducted by DRI. On the basis of these investigations, two show cause notices dated 19.12.2000 and 19.08.2001 were issued for redetermination of value and demand of differential duty to M/s Pernod Ricard which got finality on 26.07.2010 from the Hon'ble Supreme Court of India. The applicability of Rule 6 of the Customs Valuation Rules, 1988 (presently Rule 5 of Customs Valuation of Imported Goods Rules 2007) was upheld and also upheld that adjustment under Rule 5(1)(c) ....
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.... "demonstrated evidence" that clearly establishes the reasonableness and accuracy of the adjustment. One of such evidences could be a valid price list containing prices referring to different levels or different quantities. 32. The case of the revenue is that the term "demonstrated evidence" means some evidence to establish that the seller had agreed to give some discount to the importer on the listed price of the product on account of high volume of purchase, which in common parlance is termed as bulk discount and the production of such evidence is a pre-requisite for any adjustment under the Rule. The stand of the appellant, on the contrary, is that Rule 5(1)(c) and the interpretative Note (4) to Rule 5 only seek to clarify that where identical goods are sold to two or more buyers at a time but are not at the same commercial level or quantity, an "adjustment" shall be made to take account of the difference attributable to commercial level or to quantity or both. Their plea is that since the rule itself recognizes that prices differ when quantity differs, reference to "discount" in the interpretative note needs to be viewed in a wider context because according to the appellant, ....
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....hat a seller's price list is one of the "relevant pieces" of evidence to establish the factum of quantity discount by the seller. It is manifest that "adjustment" in terms of Rule 5(1)(c) of 1988 Rules, for the purpose of determination of value of an import, can be granted only on production of evidence which establishes the reasonableness and accuracy of adjustment and higher volumes of imports per se, would not be sufficient to justify an adjustment, though it may be one of the relevant considerations." 13. Regarding sole grievance of the assessee-Appellants i.e. violation of natural justice and supply of the comparable chart, it appears that the considerable time has already been lapsed and the assessee-Appellants have not asked the relevant material in the first round of litigation before the Tribunal as well as before Hon'ble Delhi High Court to support his arguments. At this belated stage, demanding of the documents i.e. comparable chart is nothing but a dilatory tactics just to delay the proceedings as the period under consideration starts from 2003. The original authority has already given the chart by mentioning that the "Concentrated Alcohol Beverages‟ (CAB) was di....