TaxTMI 
TaxTMI 
2024 (12) TMI 1154
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....o the Appellant, by invoking the extended period provision, raising the following allegations: a) That the price charged by the foreign supplier was FOB price. The said contention was raised based on certain clauses of the Supply and Distribution agreement with the Supplier which stipulated that all orders shall be shipped FOB Ex-Works the Netherlands. By treating the Invoice price as FOB, the Show Cause Notice proposed addition of notional freight and insurance under Rule 10 (2) (i) and (ii) of the Customs Valuation Rules 2007, b) That the goods were covered by Sr. No.40 of Notification No.14/2008-CE (NT) dated 1-372008 issued under Section 4A of the Central Excise Act 1944 and required affixing of RSP and were liable to be assessed to additional duty of Customs (CVD) on the RSP. As no RSP was declared, the RSP is taken as three times the import value. 3. After due process, the adjudicating authority confirmed the demand. On appeal, the Commissioner (Appeals), dismissed their appeal. Hence, the appellant is before the Tribunal. 4. The Ld. Counsel appearing for the appellant makes the following submissions: 4.1. It is submitted that the goods were importe....
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....thus submitted that there is not a manner of doubt that the price charged in the present case was the CIF price and not FOB. 4.4. Accordingly, the Ld. Counsel for the appellant submits that since the price charged was CIF for delivery at the place of import viz. Calcutta, the question of treating the price as FOB and consequently adding notional freight and insurance in terms of Rule 10 (2) (i) and (ii) of the Customs Valuation Rules 2007 does not arise. 4.5. The appellant also submits that the Show Cause Notice has proceed to allege that the contract was FOB on the basis of Supply and Distribution Agreement with foreign supplier [on Paragraphs 3 and 5 of the said Agreement] for contending that the price in the present case was FOB and not CIF, which is ex-facie erroneous and totally misconceived; a bare perusal of the said Agreement would show that the said paragraphs 3 and 5 apply to the product, which as per the very first recital of the agreement and definition clause 1.2 is the active ingredient known as "Microgen Quat-80" and which, as per the said paragraph 5, was to shipped FOB Ex-Works Mijdrecht, the Netherlands. In this regard, it is submitted that the goods importe....
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....t the imported goods in the present case, which have been assessed under CTSH 3402 90 99, are in liquid form and not in the form of Bars, cakes, moulding pieces or shapes and the same are therefore clearly not covered by the said Sr. No.40 and accordingly, MRP based assessment is not applicable. 4.9. It is also their contention that assuming while denying that the imported goods are covered by the said Sl. No.40 of Notification No. 14/2008-CE (NT), even so, the second Condition that there should be requirement under the Standards of Weights and Measures (Packaged Commodity) Rules 1977 to declare the retail price on the goods, is not satisfied. 4.10. The appellant have also submitted that the goods in the present case were imported for Government of Jharkhand, Health Department, for use in their Hospitals; as per the terms and conditions of the Government Order/ tender, the goods were required to bear a Label mentioning 'Govt. of Jharkhand Supply, not for Sale". Accordingly, the goods carried such Label mentioning "Govt. of Jharkhand Supply, not for Sale". The foreign supplier's invoices also mentioned "Govt. Of Jharkhand Supply". This is in dispute. 4.11. Since the....
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.... been duly submitted at the time of clearance of the goods and there was no wilful mis-statement or suppression of facts with regard to the price charged by the supplier. (ii) On the issue of whether the goods are liable for CIF based assessment, the same is purely one of legal interpretation. (iii) As laid down in the following judgments, the Revenue cannot justify invocation of larger period of limitation merely because the department takes a different view on the same: a) Kamavati Car Air Conditioners P. Ltd v CC [(2024) 15 Centax 360] b) Medical Engineers (I) Ltd v. Commr. of Cus., Mumbai [2015 (329) ELT 567 (Tri. - Mum.)] (iv) The Bills of Entry were duly assessed by the proper officers of customs. Merely because the same documents filed by the Appellant, the audit subsequently takes a different view, that cannot justify the invocation of the larger period of limitation. (v) Further as held in the following decisions, merely because the audit department subsequently took a different view on the legal interpretation of the issues, that cannot justify confiscation of the goods under Section 111 (m) of the Customs Act 1962 and....
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.... papers and the additional submissions made by both the sides. 11. The issue to be decided in the present appeal is as to whether : (a) The price charged by the overseas exporter is on CIF basis or on FOB basis. This would help us to decide as to whether the Freight and Insurance costs are to be added or not to arrive at the Assessable Value. (b) Whether the MRP / RSP provisions would apply, thereby calling for higher CVD payment as has been held by the Adjudicating authority. 12. In order to decide the issue at (a) above, it would be important to go through factual details and the documentary evidence placed before us: 12.1. The appellant has claimed that the freight and insurance has been borne by the foreign exporter and the goods have been consigned for delivery to the appellant at Kolkata. Hence, the appellant claims that the price shown in the overseas exporter's invoice is CIF, which has been already adopted by the appellant for payment of Customs Duty. 12.2. The appellant has submitted copies of the Bills of Entry, Invoices, BL and Insurance, etc., in their Synopsis (page Numbers 10 to 53). Some of the important documents are extracted below : ....
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....ral Excise Act, 1944, for arriving at the CVD to be paid. 12.7. The documentary evidence proves that the goods are meant only to Govt of Jharkhand hospitals and are not to be sold in retail to any other person. Such bulk supplies would fall under the category of Industrial / Institutional sales as per the Legal Metrology provisions. 12.8. The issue as to whether even the goods which are normally subjected to Section 4A valuation, require the Excise Duty to be paid on the basis of MRP or not when the goods are cleared to industrial customers were before the Hon'ble Karnataka High Court in the case of M/s. EWAC Alloys Ltd v. Union of India [2012 (275) E.L.T. 193 (Kar.), wherein it has been held as under : "29. In Rule 2-A industrial consumer or the institutional consumer are purchasing the packaged commodities directly from the manufacturer. In the case of retail package, the manufacturer of goods meant for industrial use may not be able to supply the goods directly. Therefore, they may take the assistance of a stockist. If the customers are speared over the country and if the manufacturing unit is in one part of the country and they want to concentrate on manufacturin....
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.... sales are generated through the involvement of core team of sales/service engineers of petitioner No. 2 who are trained in specialized Eutectic Castolin Welding Process. These products are used in the process of reconditioning, remaking, rejuvenation and restoration of the machinery or equipment. Depending on the surface of the machinery to be welded, the particular specialized type of welding electrodes and fluxes are recommended to the customer. The sales team suggests the mix of the products, the price and the stockist from whom these can be purchased. Therefore, in the facts of this case, it cannot be said that the person to whom these petitioners are selling the products are customers in the sense it is understood under the Customer Protection Act for whose protection this particular Act and Rules were enacted. Therefore the impugned notices issued are one without authority, illegal and contrary to the express provisions contained in the enactment and cannot be sustained. Therefore it is liable to be quashed. Hence, I pass the following order : (i) Writ petition is allowed. (ii) The impugned notices are hereby quashed. (iii) Parties to bear their ow....
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....hat the enhancement of Duty on this count is legally not sustainable, we set aside the impugned order to this extent. 13. As a result the Appeal succeeds on merits. 14. The appellant has also vehemently argued that the Show Cause Notice issued on 29-11-2012 for the goods imported during the period September to October 2008, is hit by time bar. We find that the goods were cleared by the Customs Officials based on the documents placed by the appellant at the time of imports. They did not find anything amiss and assessed the Customs Duty payable, which was final and not provisional assessment. In the present proceedings, the Revenue has not brought in any evidence to the effect that they have stumbled upon any new evidence to the effect that the freight and insurance paid by the exporter has been reimbursed to them by the appellant. Nor has the Department brought in any evidence to the effect that the goods in question were not sold in bulk to the Govt of Jharkhand hospitals, but were diverted and sold in retail. All the documents relied upon by the Department are the ones, which were already made available to them by the appellant at the time of imports. Thus, the Department ha....
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....ROBINSON AIR 41 003/002 MICROGEN HYGIENE RVT. LTD. 9, KC INDUSTRIAL ESTATES SUBHASH ROAD, JOGESHWARI (E) MUMBAI, IN 400 960 C.H. ROBINSON INTERNATIONAL, INC. 855 ARTHUR AVENUE ELK GROVE VILLAGE, IL 60007 ACA 01-1-9566/ 0233 A ORD CHICAGO - O'HARE INTL AIRPORT IAD BRITISH AIRWAYS LBR BA CCD BA CALCUTTA 9560/1004 147/1007 C.E. ROBINSON INTERNATIONAL 187 Wigs and have these UNLESS 642-57006524 NCT 10 THE CONDITIONS of CONTRACT ON THE ANY OTHER MEANS CONTRATY INSTRUCTIONS ANE VON HEREON BY THE SUTUR AND DER AGREES THAT THE DIPMENT MAY WA INTERMEDIATE STOPPING PLACES THE CAPER DEMS APPROP SHOPPERS ATTENTION IS DAN TO THE NOTOS CONCINO CARO LIMIDITION OF -DELIVERY TO CALCUTTA VIA PERNIT -NO. IMPORT- 7395/07 DT. 03/08/07 TYY PARTY: MICROGEN HYGIENE PVT, LTD.; CONTACT: MR. RAJU PAREKH; TEL: +011.91.22.28.361398 15 10950 15 10950 Aa Agcood $0.00 Cla INDIA Charg A20001002044242 10950 AS AGREET AS AGREED CLEARING COMPOUNDS. MON-HAZA 158102x122x157CM $0.00 Other Charges (Ages As Agreed As Agreed Dengines As Agreed As Agreed C.H. ROBINSON INTER....
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....7 REGISTRATION CERTIFICATE LICENSE No. FF-434-10445 DL 04/07/07 DCGI REG. 64/FF/09/07-DC Ship Via Cmu Trans Required Date Quantity Item Number Description U/M Location/Bin Req. Pullog 1694 D-125 Disinfectant Cleaner CS Lavender Fragrance & Dye - 12/1 ltr case 1298 1298 & 1308 100 ختر 50 1308 500 1308 & J018 50 J018 & J028 50 J018 100 J028 250 TOTAL NET WEIGHT: 20,440 KILOGRAMS Document 5 rou brow MICROGEN INSIDE MICROGEN Daintociant Products Redefining Clean D-125 HOSPITAL VIRUCIDAL DISINFECTANT CLEANER DISINFECTANT-VRUCDE FUNGICIDE WILDENSTAT FOR HOSPITAL USE ONLY ACTIVE INGREDIENTS: All (80% C14, 30% C18,5% C12,5% C14) dimethylbenzyl ammonium chicide.. All C12, 32% C14 dimethylethylbenzyl ammonium chloride. INERT INGREDIENTS TOTAL 2.37% 2.37% 15.21% 130.00% Maduni War Butch No 9, KC INDUSTRIAL ESTATE, SUBHASH ROAD, JOGESHWARI (E), MUMBAI 400 060 INDIA Sold By: MICROGEN HYGIENE PVT. LTD. E-mail: [email protected]/www.microgenindia.com Phone No.: 91 22 28361398 Fax 91 22 28379110 KEEP OUT OF ....