M/S. Mccpta India Corporation (P) Ltd vs Commissioner Of Customs(Port), ...

(Arising out of Order-in-Appeal No.KOL/CUS/CKP/50/2007 dated 07.02.2007 passed by the Commissioner(Appeals) of Customs, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)

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

2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. MCCPTA India Corporation (P) Ltd. Applicant (s)/Appellant (s)

Vs.

Commissioner of Customs(Port), Kolkata Respondent (s)

Appearance:

Shri A.Baheti, C.A. for the Appellant (s)

Shri S.K.Naskar, AC(AR) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing:- 11.5.2015 Date of Pronouncement :- 11.5.2015

ORDER NO.FO/A/75267/2015

Per Dr. I.P. Lal.

1. Instant appeal is filed against the order-in-Appeal dated 19.2.2007 passed by Commissioner of Customs(Appeals), Kolkata.

2. Briefly stated the facts of the case are that the appellant filed bill of entry No.112658 dated 26.10.2004 for clearance of Palladium Catalyst (re-processed) from manufacturer M/s.N.E. Chemical Corporation, Japan at the declared value comprising of the value for extraction, conversion charges (as charged by manufacturer) and insurance and freight charges (both ways). The bill of entry was provisionally assessed by enhancing the value of the item as per contemporary import under bill of entry No.208961 dated 28.10.2004 by the same importer. The bill of entry was finally assessed on 12.7.2005 on receipt of the test report which confirm that the impugned item under import was Palladium Catalyst. Against the final assessment, the importer filed an appeal before Commissioner(Appeals), who remanded the case to the adjudicating authority for fresh adjudication and deside the case after following the provisions of Customs Valuation Rules 1988. The adjudicating authority again rejected the declared value under Rule 10(A) of CVR 1988 and re-determined the value under Rule 6 read with Rule 8 of the CVR 1988 on the basis of contemporary import by the same supplier at Japanese Yen 5462.40 per kg. Being aggrieved the appellant preferred the appeal before the Commissioner(Appeals). The ld.Commissioner(Appeals) upheld the order passed by the adjudicating authority. Being aggrieved the appeal is preferred now before this forum.

3. Shri Arvind Baheti, the ld.Chartered Accountant appearing for the appellant has submitted that the appellant in the present case has adopted the method of valuation as laid down in general exemption Notification No.21/2002-CUS dated 01.03.2002 under Sl.No.212B, condition 28B. Although the above notification related to zinc metal only, but the position being analogous, in the present case also the methodology of arriving at value should be adopted in the same manner. He however fairly agrees that the impugned notification does not cover the import of reprocessed Palladium.

4. As per contra the ld.A.R. for the Revenue submits that the aforesaid notification covers only the zinc metal and therefore the benefit of the same cannot be extended in the instant case, as the metal in question is Palladium and not zinc. He submits that the wording of the Notification cannot be stretched to give the benefit to an item which is not covered under the said Notification. He relied upon the Honble Apex Courts judgement in the case of Mohan Diaries reported in 2004(266)ELT 23(SC).

5. Heard both sides and perused the records.

6. We find that Notification No.21/2002-CUS dated 1.3.2002 as amended exempts the goods of the description specified in column 3 of the table given below the said notification when imported into India from so much of the duty of customs leviable thereon under the said first schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column 4 of the said table. It further exempts by imported goods from so much of the additional duty leviable thereon as in excess of rate specified in column 5 of the said table subject to any of the conditions specified in column 6 of the said table. The condition No.28B provides that if Zinc metal is imported within one year or the date of export of zinc concentrate out of India and sufficient evidence exists to establish that zinc metal, which is imported has in fact been obtained out of toll smelting or toll processing of zinc concentrate exported out of India, on the import of such zinc metal the duty shall be leviable as if the value of the said metal were equal to the aggregate of

(a) labour charges

(b) cost of materials (other than the cost of goods exported out of India) used in such toll smelting or toll processing; and

(c) any other charges which are payable in connection with the toll smelting or toll processing abroad;

It is the contention of the Appellant that they have exported earlier the spent catalyst to the manufacturer for recovery of Palladium metal and after the said processing the resultant Palladium catalyst was imported by them, in such a case the value of the said Palladium metal cannot be determined under the Customs Valuation Rules, but the same is to be determined as per methodology provided in the Notification stated above. On perusal of the Notification No.21/2002-CUS dated 01.03.2002 and the corresponding entry under Sl.No.212B we find that the impugned Notification does not cover the Palladium metal and therefore we hold that the ld.Commissioner(Appeals) has rightly held that the benefit of the said Notification is not available to the appellant and the value was correctly determined on the basis of contemporary import under Rule 6 read with Rule 8 of Customs Valuation Rules 1988 after rejecting the provisions of Rule 4 & 5.

7. In view of the facts and circumstances of the case stated above we do not find any merit into the Appeal and therefore reject the Appeal.

(Operative part of the order was pronounced in the court.)

SD/ SD/

(D.M.MISRA) (I.P.LAL) MEMBER(JUDICIAL) MEMBER(TECHNICAL) sm

5 Appeal No. Cus.Ap.59/07