Commissioner Of Customs (Prev.), ... vs M/S. Hindustan Copper Limited

(Arising out of OIA-161/JMN/2006 dated 31.10.2006, Passed by Commissioner (Appeals) Customs, Jamnagar)

Commissioner of Customs (Prev.), Jamnagar : Appellant (s)

VERSUS

M/s. Hindustan Copper Limited : Respondent (s)

Represented by :

For Revenue (s) : Shri S.K. Shukla, Authorised Representative For Respondent (s) : Shri Anand Nainawati, Advocate

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Hon'ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Hon'ble Member (Technical)

Date of Hearing / Decision : 11.05.2015

ORDER No. A/10606/2015 Dated 11.05.2015

Per : Mr. H.K. Thakur;

This appeal has been filed by the Revenue against the OIA No. 161/JMN/2006 dated 31.10.2006 passed by Commissioner (Appeals), Jamnagar. The issue involved is the difference in moisture content of the consignments of M.T. Copper concentrate imported by the assessee, at the time of loading the consignment at the port of shipment and at the time of importation.

2. Shri S.K. Shukla (AR) appearing on behalf of the Revenue argued that present Respondent never questioned the method of drawing samples and can not raise this issue during appeal proceedings. That sample was drawn properly and sealed and it will not make any difference in moisture content even if sample was drawn on 18.06.1998 and testing was done on 25.8.1998. That lightrage and stevedoring charges in the present case are includible as it was a case of high sea sales and the judgment of Supreme Court in the case of M/s Ispat Industries Limited vs. Commissioner of Customs, Mumbai  [2006 (202) ELT 561 (SC)], is not applicable to the present facts of this appeal.

3. Shri Anand Nainawati, (Advocate) appearing on behalf of the Respondent argued that lightrage and stevedoring charges has been held to be not includible as per Ispat Industries vs. CC, Mumbai (supra) case and it does not make any difference if the goods are purchased on high sea sales or otherwise. So far as payment of differential duty on the moisture content in imported goods is concerned, it was argued by the learned advocate that whatever may be the moisture content, the invoice value on which duty is paid will not change. It was also his case that Revenue has not produced any evidence that any amount more than the invoice price has been repatriated to the seller. That, inspite of the sampling and testing errors, not agitated at this stage, the case of short levy can not be sustained. He relied upon the case law of Commissioner of Customs (Prev.), Jamnagar vs. Gujarat Ambuja Cement Limited, Jamnagar in order No. A/751 to 761/WZB/AHD/2012 dated 30.05.2012.

4. Heard both sides and perused the case records. Following issues are involved in this appeal:-

(i) whether lightrage and Stevedoring charges are required to be included in the assessable value.

(ii) whether any short payment has been made by the importer in view of the moisture content of copper concentrate.

4.1 So far as point mentioned at Para 4 (i) is concerned, first appellate authority has relied upon the Apex Courts judgment in the case of Ispat Industries Limited vs. CC, Mumbai (supra). Revenue has tried to make a distinction on facts which we are not inclined to appreciate. It does not make any difference whether the present case is one of the High Sea Sales which was not the fact before the Apex Court. Hon'ble Apext Court has held that once freight is included in the assessable value up to the port of unloading then no further expenses on account of lightrage and stevedoring can be added to the cost of transportation. We find that there is no difference on facts and the law laid down by Apex Court in the case of Ispat Industries Limited vs. CC, Mumbai (supra) will be squarely applicable.

4.2 So far as the issue mentioned at Para 4(ii) is concerned, any change in the moisture content at the time of loading and at the time of unloading will not effect the invoice price on which the duty is paid. Revenue has not brought any evidence on record that extra amount has been paid to the sellers. Once a consignment has been imported under one invoice, the same will represent the transaction value of the imported goods as no contrary evidence of extra repatriation to seller is available on record. There is also weight in the argument of the appellant that there could be a difference in the moisture content of the copper concentrate of the port of loading and port of discharge, depending upon the climatic conditions and the method of sampling. However, to our mind, such a variation will not have any bearing on the valuation for an agreed price which has been paid. The ratio of the case law laid in the case of CC (Prev.), Jamnagar vs. Gujarat Ambuja Limited, Jamnagar (supra) is squarely applicable to the issue mentioned in Para 4(ii) above.

5. In view of the above observations and settled preposition of law, appeal filed by the Revenue is rejected.

(Operative part of the order pronounced in the open Court)

(P.K. Das) (H.K. Thakur) Member (Judicial) Member (Technical) ..KL

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