M/S. Essel Mining And Industries Ltd vs Commissioner Of Customs And Service Tax ...

[Arising out of Order-in-Appeal No.44/2014-VCH dated 03/04/2014; Order-in-Appeal No.48/2014-VCH dated3.4.2014 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals), Visakhapatnam.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters 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 the 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

M/s. Essel Mining And Industries Ltd. Industry House, 18th Floor, 10, CAMAC Street KOLKATA - 700017 Appellant(s)

Versus

Commissioner of Customs and Service Tax Visakhapatnam - Cus. CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM, - 530035 ANDHRA PRADESH

Respondent(s)

Appearance:

Mr. G. Shivadass, Advocate LAKSHMI KUMARAN & SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, BANGALORE - 560 055 KARNATAKA For the Appellant

Mr. Mohd. Yusuf, Addl. Commissioner (AR) For the Respondent

Date of Hearing: 06/01/2015

Date of Decision: 06/01/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20027-20028 / 2015

Per : ARCHANA WADHWA

After hearing both the sides, we find that the demand of Rs.9,50,586/- and Rs.14,71,905/- stands confirmed against the appellant in terms of provisions of Section 14 of Customs Valuation Rules in respect of the export consignment of iron ore fines made by the appellant, under a contract. The said demand stands confirmed on the sole ground that there is another shipping bill filed by another person showing the higher sale value. Apart from that, there is nothing on record to first reject the contract entered into by the appellant with their foreign buyers or any evidence to reflect any receipt of money by the assessee from his foreign buyers towards the value of the exported goods. Further, there is nothing on record to reflect that another shipping bill, relied upon by the Revenue, was contemporaneous in nature, inasmuch as neither the quantum of the goods nor the quality of the goods stands mentioned. As such we are of the view that reliance on the sole shipping bill, for enhancement of the value is not proper.

2. We further note a very self-contradictory observation of Commissioner (A), in his impugned order. For better appreciation, we reproduce paragraph 5.10.

5.10 In view of the above, it is observed that providing relied upon documents to exporter (appellant) is a legal requirement and hence I direct the Assistant Commissioner/Deputy Commissioner (respondent) concerned to provide the relied upon documents forthwith. However, the appeal filed is dismissed as devoid of merits.

3. It is seen that on one hand he is agreeing with the appellants grievance that relied upon documents were not provided to them and has directed the Assistant Commissioner to provide the same and at the same time rejected the appeal. We find that even in preceding paragraphs identical observations and findings as regards violation of principles of natural justice had been made by the Commissioner (A). Further, the appellate authority has also referred to the Honble Supreme Courts decision in the case of Commissioner of Customs, Visakhapatnam vs. Aggarwal Industries Ltd. reported as 2011 (273) E.L.T. 646 (S.C.) wherein the Honble Court observed that as no details of any contemporaneous imports or any other material indicating the price notified by the LME had been referred to, the demand for the additional duty created against the assessee was not justified. However, the appellate authority has not gone ahead to observe that apart from referring to the shipping bill, no details, required for holding the said shipping bill as contemporaneous, stands given by the Revenue.

4. In view of the above observations made by us, we find no justifiable reasons to sustain the impugned orders passed by the Commissioner (A). Accordingly, after allowing the stay petitions, we set aside the impugned orders and allow the appeals itself with consequential relief to the appellant.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

ARCHANA WADHWA JUDICIAL MEMBER

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