C.C. Jamnagar Vs Shree Cement Limited (CESTAT Ahmedabad)
CESTAT Ahmedabad held that difference is value declared on import of non-calcined petroleum coke by the appellant i.e. Rs. 2871.15 as against the comparable imports price i.e. Rs. 3701.20 justified based on the nature of supplies and long-term contract of appellant with supplier.
Facts- This is Revenue’s appeal arising out of Order in Appeal No. 127/COMMR(A)/JMN/2011 dated 09.11.2011. The issue involved in the present case is that whether the value declared by the appellant in respect of import of Non-calcined petroleum coke as Rs. 2871.15 is correct or price of comparable import made by BGH Exim Limited @ Indian Rs. 3701.20 is correct. Accordingly whether the enhancement of value should be made taking the price of comparable imports.
Conclusion- It is observed that the learned Commissioner (Appeals) has examined each and every aspect of the case and came to the conclusion that there is a vast difference between the nature of supplies made by BGH Exim Limited and the appellant in as much as there is a long term contract of the appellant with the suppliers and for the huge quantity of 9000 MT Per Annum. On careful consideration of the findings of the learned Commissioner (Appeals), we observe that there is no infirmity in the findings of the impugned order. Hence, the same needs to be sustained. Accordingly, the impugned order is upheld. Revenue’s appeal is dismissed. Cross also stand disposed of.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This is Revenue’s appeal arising out of Order in Appeal No. 127/COMMR(A)/JMN/2011 dated 09.11.2011. The issue involved in the present case is that whether the value declared by the appellant in respect of import of Non-calcined petroleum coke as Rs. 2871.15 is correct or price of comparable import made by BGH Exim Limited @ Indian Rs. 3701.20 is correct. Accordingly whether the enhancement of value should be made taking the price of comparable imports.
2. Shri G. Kirupanandan, Learned (superintendent) Authorized Representative appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that learned Commissioner (Appeals) has not considered the fact that all the main factors i.e. Origin of Cargo, date of shipment / bill of lading, vessel carrying the cargo remain the same. He further submits that also certificates of sampling and analysis issued by M/s Sai Gulf Lic, an independent analysing agency for quantity of 40,500 MT of cargo and 9,400.480 MT of cargo respectively clearly indicated that the cargo in both the cases is identical in terms of Rule 4(1) of Customs Valuation Rules 2007 imported by two different importer in which date of importation also remained same. Even the supplier in both the cases was M/s Swiss Singapore Overseas Enterprises Pte Ltd., Singapore. This clearly indicates that cargo in the case of Shree Cement (the Respondent) and M/s BGH Exim Limited is identical because there is no change in analysis result. Therefore, the order in appeal passed on the basis of incorrect appreciation of facts, suffers from factual infirmity. Hence, the same deserves to be quashed and set aside.
3. Shri P.D. Rachchh, learned advocate appearing on behalf of the respondent submits that the impugned order was passed on appreciation of factual as well as legal aspect, proper reasoning was given by the Ld. Commissioner (Appeals) inasmuch as it was contended that Import of the appellant can be differentiated from the import made by BGH Exim Limited. Therefore, the Revenue’s appeal is frivolous and without application of mind. He submits that as per the provisions of Section 14 Ibid, the value of imported goods shall be the transaction value. The transaction value is the price actually payable for the goods when sold for export to India adjusted in accordance with the provisions of Rule 10 of these Rules. He further submits that the goods were sold for export on the date of contract and there was three months difference between the date of contract of the respondent and other importer, namely, BGH Exim Limited whose value is proposed to take, therefore, the price of BGH Exim Limited cannot be taken. He placed reliance on the following judgments:
