M/S. Sinosteel India Pvt. Ltd vs Commissioner Of Customs And Service Tax ...
- CitationAppeal No.39/2014-VCH
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) could not rest his rejection of the appeal solely on the ground that the bank's addendum was undated and had not been placed before the original adjudicating authority, without examining the other evidence on record bearing on whether the FOB value was actually lower than the CFR value; where the question turns on verification of documentary evidence and the appellant offers such evidence in support of its claim, the appellate authority must consider that evidence on its merits, and the matter is to be remanded to the original adjudicating authority for fresh examination of the documents if they were not properly considered below.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.39/2014-VCH dated 21/03/2014 passed by Commissioner of Central Excise and Service Tax, VISAKHAPATNAM-I( Appeal).]
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?
2 Whether it should 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 Departmental authorities?
M/s. Sinosteel India Pvt. Ltd. 12th Floor, EROS Corporate Tower, , NEHRU PLACE, NEW DELHI - 110019 Appellant(s)
Versus
Commissioner of Customs And Service Tax Visakhapatnam-Cus. CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM 530 035. ANDHRA PRADESH Respondent(s)
Appearance:
Mr. Gagan Kumar, Advocate Flat No.101, Tower Yamuna 9, Nelson Mandela Road, D-6, Vasant Kunj, New Delhi. For the Appellant Mr. R. Gurunathan, 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. 20034 / 2015
Per : ARCHANA WADHWA
After dispensing with the condition of pre-deposit, we proceed to decide the appeal itself inasmuch as the issue relates to factual verification of the documents. After hearing both the sides, it is seen that the appellant, who is an exporter of iron ore in the form of fines, filed shipping bills by declaring the unit price as US$ 181 PDMT FOB as per the contract. The shipping bills were initially assessed provisionally and subsequently finally assessed based upon the customs laboratories test report accepting the price as US$ 180.52 PDMT FOB. Finalization of the provisional assessment was done based on the total FOB value as per the bank realization statement submitted by the appellant and subsequently demand was raised against them.
2. The only short dispute in the present appeal is that the Bank while issuing the bank realization certificate reflected the CFR value as FOB value, otherwise, there is no dispute that the duty has to be paid on FOB value. The bank has subsequently given the clarification that they wrongly picked up the CFR value as the FOB value, on the said basis the appellants made out a case in their favour.
3. It is seen from the order of the Commissioner (A) that he has refused to look into the addendum issued by the Bank on the ground that the same is undated and the same was not brought to the notice of the assessing officer. He has also referred to the provisions of Rule 5 of the Customs (Appeals) Rules, 1982 which provided that appellant was not entitled to produce any evidence, whether oral or documentary, other than the documents produced by him during the course of proceedings before the original adjudicating authority. On this short ground, he has rejected the appeal filed by the appellant.
4. The contention of the learned advocate is that even if the said addendum is not considered, there are other ample evidences to be looked into and examined, which would clarify that the FOB value was actually less than the CFR value. He submits that they procured the addendum from the Bank latter on and as such, the same could not be placed before the original adjudicating authority. Further, the fact of the said addendum being undated is not in their hands and the veracity of the same cannot be rejected on the sole ground of the addendum being undated. As long as the same is issued by the Bank, the same should have been considered by the authorities below.
5. As the issue relates to verification of the documentary evidences, we deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for examining the various evidences placed by the appellant on record in support of their submission that Bank had wrongly reflected the CFR value as FOB value. The matter may be decided afresh in the light of above. The stay petition as also appeal gets disposed of in above manner.
(Order pronounced and dictated in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 3
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