Ground not raised before Commissioner (Appeals) cannot be raised before Tribunal by department

CA Bimal Jain

Facts:

Kwang Sung Brake India Pvt. Ltd. (the Respondent) had imported goods from their principal supplier Kwang Sung Precision Co., Korea, who were related in terms of Rule 2(2) of the Customs Valuation Rules. Accordingly, goods were cleared by making the Provisional Assessment and the case was referred to the Special Valuation Branch (SVB). The Assistant Commissioner of SVB vide his order dated May 24, 2012 held that the Respondent and the foreign supplier were related party and the invoice price shall be accepted as transaction value. It further directed to finalise the Provisional Assessment and held that this Order is operative for three years up to May 23, 2015.

The Department reviewed the Order of the Adjudicating Authority and preferred an appeal before the Commissioner (Appeals) on the ground that Adjudicating Authority should have examined the contemporaneous import of similar goods before the passing the Order. Further, in an appeal before the Hon’ble CESTAT, the Department raised new grounds, alleging the Respondent as an agent of their principal and the difference between foreign invoice price and the Indian price as their Commission.

Held:

The Hon’ble CESTAT, Chennai relied upon the judgment of the Hon’ble Apex Court in the case of Warner Hindustan Ltd. Vs. CCE, Hyderabad [1999 (113) ELT 24 (S.C.)] and held that the Department is not allowed to raise new grounds of appeal before the CESTAT which were not raised before the Commissioner Appeal(s). It was further held that where the customized goods are imported which was clearly mentioned in the Order-in-Original and the Order-in-Appeal, then comparison of contemporaneous imports of similar goods or identical goods does not arise.

(Author can be reached at Email: bimaljain@hotmail.com)

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