AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 486
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....d upon the Managing Director of the appellant and also upon the Business Head of the appellant. 3. Customs Appeal No. 3627 of 2012, Customs Appeal No. 3268 of 2012 and Customs Appeal No. 3629 of 2012 have been filed by the department contending that the Commissioner (Appeals) had no power to remand the matter to the adjudicating authority. 4. The appellant is engaged in the business of import, fitment and trading of CNG Kits and components. The complete CNG consists of more than 20 different parts and components, out of which the appellant imports only four parts, namely (i) Reducer, (ii) Refilling valve, (iii) Switch indicator with pipe, and (iv) High pressure pipe. In addition to the above imported components, the appellant also procured other components from the domestic market such as CNG cylinder, mounting/fixing bracket for CNG cylinder, Bracket Nut Bolts, Cylinder Valve, Vent Hose, Vent Hose Clamps, Hi-pr Tube Saddles, Mounting Bracket for CNG cylinder, Nut Bolt for Brocket, etc. 5. As per the requirement under the Motor Vehicles Act, 1988 [the MV Act] and the rules made thereunder, the retrofitment of CNG kit on in-use vehicles is required to be carried out by....
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....roduced below: "13. Considering the issue on merits, the case of the Department is that the Appellant imported CNG kits and evaded Customs duties by paying CVD on the imports of CNG Kits and components on transactional value and not on Retail Sale Price (RSP) basis as required under proviso to sub-section (2) of section 3 of the Customs Tariff Act, 1975 read with section 4A of the Central Excise Act, 1944 read with entry No. 108 of the Notification No.49/2008-C.E.(N.T.); hence, they were required to pay differential Customs duty under proviso to Section 28 (1) of the Customs Act, 1962. The issue is essentially whether the said goods were required to be assessed based on transaction value and RSP under the relevant provisions supra. I find that this issue is settled vide Entry NO. 108 of the said Notification read with CBEC Instruction issued under F. No. 167/38/2008-CEX-IV dated 16.12.2008. It is materially evident and undisputed by the Appellant that CNG kits/components are suitable for use solely or principally declared engines namely, Spark ignition reciprocating or rotary internal combustion piston engines (petrol engines) or Compression-ignition internal combustion pi....
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....nd value thereof etc. at any stage except for appropriate assessment under RSP scheme, resulting into the detection of differential Customs duty. Hence, it is not the case that the allegations contain the elements, which are necessary to invoke the proviso to Section 28 (1) of the Customs Act, 1962. I am unable to understand the issue when the subject goods were assessed by the Customs at the relevant port and time and raising the issue of assessment by claiming the existence of such elements, which are not substantiated in any manner. In view of the factual position, it is not the case that the Appellant had not disclosed the material facts regarding the imports at the time of imports by filing the referred Bills of Entry, hence, I am of the considered view that demand in question is liable to be confirmed for the stipulated period from the relevant date as provided under Section 28 (1) of the Customs Act, 1962 and not under proviso to Section 28 (1) of the Customs Act, 1962. Accordingly, the Ld. Adjudicating Authority is directed to re-work the demand and intimate the Appellant the demand amount alongwith interest under Section 28AB of the Customs Act, 1962." (emphasis supplie....
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....id statement, which incidentally was not with reference to his individual role in dealing with the said goods. Further, it is also observed that the subject goods were indeed examined by the Customs authorities at the time of import and assessment thereof. Hence, it is not the case of culpability of the Appellant -2 in his individual capacity. Moreover, Penalty has already been proposed on the Appellant -1. Hence, Penalty imposed would require review in the light of above." (emphasis supplied) 15. The relevant portion of the order passed by the Commissioner (Appeals) dropping the demand of penalty against the Business Head of the appellant is reproduced below: "17. Regarding the issue of Penalty imposed on Appellant-3, I find that the Appellant-3 undisputedly was the Business Head (Auto Group) of importer firm during the disputed period. However, it has not come on record that the statements dated 06.11.2009, 11.11.2009 and 07.01.2010 of the Appellant-3 contained anything about the Appellant-3 that he in his capacity as Managing Director had purposely and deliberately resorted to mis-declaration in terms of RSP instead of transaction value of the imported goods resul....
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....cise Act, provides for retail sale price based assessment in respect of "parts, components and assemblies of automobiles. There is no clear finding with respect to the applicability of the provisions of the 1976 Act. Thus, unless there is a requirement under the 1976 Act to declare the retail price, the valuation under the proviso to section 3(2) of the Tariff Act cannot be resorted to. In this connection reliance has been placed on the judgment of the Supreme Court in Jayanti Food Processing (P) Ltd. versus Commissioner of Central Excise [2007 (215) ELT 327 (SC)]; iv) The imported goods are not sold in packaged form and thus the provisions of the 1976 Act are not applicable. In the present case, there is no allegation, evidence or finding by the department that the goods imported were sold in packaged form; v) Rule 2A of the Packaged Commodity Rules provides that the Chapter II shall not supply to packaged commodity meant for Institutional consumers. This rule excludes the applicability of rule 6 (Part of Chapter II) regarding mentioning of retail sale price if the goods are sold to institutional consumers, i.e., consumers in service industry. The CNG Kits a....
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....for the department that the Commissioner (Appeals) had no authority to remand the matter to the Adjudicating Authority cannot, in the facts and circumstances of the case, be accepted. A perusal of the order passed by the Commissioner (Appeals) shows that the matter had been remanded to the Adjudicating Authority only for the purpose of re-determining the amount of penalty, since penalty could not have been imposed upon the Business Head and the Managing Director of the appellant. Thus, the remand is only for calculation of the amount of penalty and it cannot be contended that any issues were required to be re-determined by the Adjudicating Authority. Thus, the three appeals filed by the department deserve to be dismissed. 20. It is because of the finding recorded by the adjudicating authority, based on the statements made under section 108 of the Customs Act that the CNG Kits/components are parts/components of internal combustion engines covered under the definition of "parts, components and assemblies of automobiles" and, therefore, CVD on CNG Kits and its parts would be payable on retail sale price. The Commissioner (Appeals) observed in the impugned order that it was not....
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....e first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as an evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made. It is only when this procedure is followed that the statements of the persons making them would be of relevance for the purpose of proving the facts which they contain." 23. After examining various judgments of the High Courts and the Tribunal, the Tribunal observed as follows: "28. It, therefore, transpires from the aforesaid decisions that both section 9D(1)(b) of the Central Excise Act and section 138B(1)(b) of the Customs Act contemplate that when the provisions of clause (a) of these two sections are not applicable, then the statements made under section 14 of the Central Excise Act or under section 108 of the Cu....
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....applicable. The said proviso is reproduced below: "Provided that in case of an article imported into India,- (a) in relation to which it is required, under the provisions of the Standards of Weight and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such article; and (b) where the like article produced or manufactured in India, or in case where such like article is not so produced or manufactured, then, the class or description of articles to which the imported article belongs, is the goods specified by notification in the Official Gazette under sub-section (1) of section 4A of the Central Excise Act, 1944 (1 of 1944), the value of the imported article shall be deemed to be the retail sale price declared on the imported article less such amount of abatement, if any, from such retail sale price as the Central Government may, by notification in the Official Gazette, allow in respect of such like article under sub-section (2) of section 4A of that Act." 26. It is seen that "and" is between clauses (a) and (b) to the proviso. This mea....