M/S Shri Ahimsa Mines & Minerals Limited vs Cce, Jaipur
- CitationExcise Appeal No. 3142 of 2006
Ratio decidendi
The rule this decision rests on
Where a 100% EOU clears goods into the Domestic Tariff Area, its assessable value is the transaction value at which the goods were sold to domestic buyers, and the Revenue cannot substitute the FOB export value of the same goods, since a 100% EOU is treated on par with a foreign supplier and sales to the DTA are not to be equated with export sales to other countries. A Board circular prescribing determination of DTA sale price by reference to the export price of similar or identical goods is not in accordance with Rule 8(2) of the Customs Valuation Rules and, once withdrawn by the Board, cannot sustain such a valuation. Where the transaction value of DTA clearances conforms to Rule 3(1) of the Customs Valuation Rules, 1988, it is to be accepted in the absence of evidence by the Department that it is lower than the price of contemporaneous imports of similar goods into India; a demand founded on substituted FOB value without such evidence is unsustainable.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Excise Appeal No. 3142 of 2006 with Miscellaneous Application No. 55957 of 2014
[Arising out of the Order-in-Appeal No. APPL/JPR-I/CE/JP/87/II/ 2006 dated 28/04/2006 passed by The Commissioner (Appeals I), Customs & Central Excise, Jaipur.]
For Approval and signature :
Honble Shri Rakesh Kumar, Member (Technical)
Honble Shri Ashok Jindal, Member (Judicial)
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 would be released under Rule 27 of :
the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair :
copy of the order?
4. Whether order is to be circulated to the :
Department Authorities?
M/s Shri Ahimsa Mines & Minerals Limited Appellant
Versus
CCE, Jaipur Respondent
Appearance
Shri Nemi Chand Jain, M.D. for the Appellant.
Shri M.S. Negi, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical)
Honble Shri Ashok Jindal, Member (Judicial)
Final Order No. 50529/2015 Dated : 20/02/2015
Per. Rakesh Kumar :-
The appellant are 100% EOU. During the period from 22/4/04 to 08/12/04 they cleared 22875 kg. of Caffeine Anhydrous USP (Natural) into DTA. The declared value for the purpose of duty was Rs. 55,40,250/- and the duty was paid in accordance with the provisions of proviso to Section 3 (1) of Central Excise Act, 1944. The Department is of the view that for determining the value of the goods into DTA, the appellant should have adopted FOB value at which the same good were exported out of India. It is on this basis that duty demand of Rs. 93,680/- was confirmed against the appellant alongwith interest and penalty of equal amount was imposed by an order passed by Joint Commissioner. This order of the Joint Commissioner was upheld by Commissioner (Appeals) vide order-in-appeal dated 28/4/2006. Against this order of the Commissioner (Appeals), this appeal has been filed.
2. Heard both the sides.
3. The only point of dispute in this case is as to whether the value of the DTA clearances made by a 100% EOU should be the transaction value at which the goods have been sold to domestic buyers or it has to be the FOB value at which the same goods had been exported out of India. Though Shri M.S. Negi, the learned DR, relying upon the Tribunals judgment in the case of Tata Coffee Ltd. vs. CCE, Hyderabad reported in 2004 (168) E.L.T. 460 (Tri. Bang.) and CC, Bangalore vs. Wipro GE Medical Systems Pvt. Ltd. reported in 2009 (242) E.L.T. 275 (Tri. Bang.) and also the Boards Circular No. 268/85/-CX.8 dated 29/9/1994, pleads that the value of the DTA clearances should be determined on the basis of FOB value of the goods at which the same has been exported, we find that the Tribunal in the case of Uniworth Textiles Ltd. vs. CCE, Nagpur reported in 2009 (244) E.L.T. 401 (Tri. Del.) has held when the 100% EOU is treated on par with the foreign supplier, the sales to the DTA cannot be treated as on par with export sales to other countries and that Boards Circular providing for determination of DTA sale price on the basis of export price of similar or identical goods is not in accordance with the provisions of Rule 8 (2) of the Customs Valuation Rules. We find that in view of this judgment of the Tribunal and also other judgments, wherein same view had been expressed, the Board vide Circular No. 933/23/2010-CX. dated 16/8/2010, has withdrawn its earlier Circular No. 268/85-CX.8 dated 29/9/1994. It is also seen that as per the Board Circular No. 330/46/97-CX. dated 20/8/1997 in respect of DTA sale of a 100% EOU the transaction value can be accepted if it conforms to Rule 3 (1) of Customs Valuation Rules, 1988. In this case, the Department has not produced any evidence to show that the transaction value at which the goods were sold by the appellant to DTA buyers is much lower than the price at which contemporaneous imports of similar goods were made into India. In view of this, we hold that the impugned order is not sustainable. The same is set aside. The appeal is allowed. The miscellaneous application for restoration of said also stands disposed of.
(Dictated and pronounced in open court.)
(Rakesh Kumar)
Member (Technical)
(Ashok Jindal)
Member (Judicial)
PK
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