TaxTMI 
TaxTMI 
2025 (6) TMI 555
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....2025<br>Customs<br>HON'BLE MS. BINU TAMTA, MEMBER (JUDICIAL) And HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri R. Krishnan, Advocate for the Appellant Shri Rakesh Kumar, Authorized Representative for the Department ORDER P. V. SUBBA RAO The order-in-original dated 16.8.2010 passed by the Commissioner of Customs (Adjudication) impugned order is assailed by M/s. EDAG Technologies Ltd. EDAG (Customs Appeal No. 614/2010), Mr. Ludger Von Der Bey of EDAG Germany Ludger (Customs Appeal No. 613/2010), M/s. EDAG GMBH SEVEN Co KGA. EDAG Germany (Customs Appeal No. 615/2010), Mr. Holger Merz of EDAG Germany Holger (Customs Appeal No. 616/2010), Mrs. Babita Chopra, Finance Controller. Babita (Customs Appeal No. 617/2010) in these appeals to ....
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....ty to decide all proposals in the SCN and he accordingly issued the impugned order. 4. The SCN proceeds on the basis that EDAG had signed a turnkey contract with Ford India for Rs. 22,21,76,296/- of which 49% was to be import content (amounting to Rs.10,79,69,632/-) and the remaining 51% (amounting to Rs 11,42,06,664/-) was to be local content. EDAG imported goods and components totally valued at Rs.9,60,68,958/- (values declared in the Bills of Entry) for the project. Thereafter, EDAG imported more goods and for this purpose, made a provision to pay 1 million Euro to EDAG Germany. Since this amount was not reflected in the Bills of Entry, EDAG appeared to have suppressed the value of the imported goods to the extent of Rs.6,97,00,000/-. I....
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....s required. (iv) Therefore, EDAG entrusted this task to its parent company, EDAG, Germany. For it's services, EDAG Germany, invoiced EDAG 1 million Euros. This amount was not the price for import of any goods nor was it any additional consideration for sale of the goods nor was the payment a condition for sale of the goods by EDAG Germany. Later, however, EDAG Germany cancelled this invoice considering the financial situation of EDAG. (v) Thus, at any rate, there was no additional payment by EDAG to EDAG Germany either for services or for goods. (vi) Therefore, the SCN was issued wrongly proposing to reject the declared value under Rule 10A of the 1988 Rules and to redetermine it under Rule 8 of the 1988 Rules. (vii) The SCN relies he....
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....d been paid, what needs to be seen is if it was paid as a consideration for the imported goods or for some other purpose. According to the appellant, since its local contractor Neel Metal could not perform his job, EDAG sought the services of EDAG Germany and it is for this purpose, EDAG raised the invoice. This cannot be the consideration for the imported goods but can only be consideration for the services. It needs to be noted that between the parent company EDAG, Germany and its Indian subsidiary EDAG, there could be payments or financial transactions for many reasons. Simply because EDAG paid an amount to EDAG Germany, it does not become additional consideration for the sale of the goods. 13. It also needs to be noted that the SCN rel....
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....under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.] 14. None of the persons whose statements were relied on were examined by the Commissioner. If they were examined, naturally, noticees must be given an opportunity to cross examine them. By not following the procedure under section 138B, the Commissioner rendered all the statements relied on in the SCN irrelevant to the case. 15. Learned counsel for the appellants is also correct in his submission that during the relevant period, the Customs Act extended to the whole of India and not beyond. Therefore, penalties imposed on persons and entities outside India cannot be sustained at any rate. 16. To conclude: a) No additional....