M/S. Toyoto Kirloskar Motor Pvt. Ltd vs Commissioner Of Customs, Chennai

[Arising out of Order-in-Appeal No.C.CUS.698/04, dated 30.09.2004 passed by the Commissioner of Customs (Appeals), Chennai]

M/s. TOYOTO KIRLOSKAR MOTOR PVT. LTD. APPELLANT

Versus

COMMISSIONER OF CUSTOMS, CHENNAI RESPONDENT

Appearance:

For the Appellant Shri S. Karthick  No vakalat on file for M/s. Toyoto Kirloskar Motor Pvt. Ltd. Adv.

For the Respondent Ms. Indira Sisupal, AC(AR) AC (AR)

CORAM:

Honbe Shri R. Periasami, Technical Member

Date of hearing 23-01-2015

Date of decision 23-01-2015

FINAL ORDER NO. 40159 / 2015

Appellant has filed appeal against the impugned order dated 30.09.2004. The brief facts of the case are that appellant is a manufacturer of automobile and imported parts, components, raw materials and capital goods from their supplier M/s. Toyota Nagoya,

Japan. They have imported two consignments of Screw Tapping during Nov.00 and Jan.01 which were assessed and cleared provisionally under Section 18 of the Customs Act, 1962 vide Bills of Entry No.035903, dated 21.11.2000 and 002503, dated 23.01.2001 pending SVB finalisaion. Since the appellant have imported from the related party, the bill of entries were assessed provisionally on execution of a bond. The appellant paid the duty as part of the invoice price and cleared the goods.

2. Subsequently, the appellant filed refund claims before Assistant Commissioner (Refunds) amounting to Rs.10,33,692/- against bill of entry no. 035903 and Rs.10,40,186/- against bill of entry no.002503 respectively on the ground that the unit FOB value of the subject goods was mentioned as USD 16. 00 per piece as against the FOB price of USD 0.01 per piece and the same was rejected by the Deputy Commissioner of Customs (Refunds) on 25.03.2014 as unsubstantiated since the appellants had not produced the documents called for by the department in support of the claim in spite of giving reasonable number of opportunities being given to submit the requisite documents and have also not appeared for hearing.

3. On appeal, the learned Commissioner (Appeals) in the impugned order, dismissed the appeal on the ground that the refund is premature and is not maintainable ab initio when the order of assessment is not modified as per law relying on the decision in the case of M/s. Priya Blue Industries Ltd. Hence, the present appeal.

4. Heard both sides and perused the records.

5. The learned Advocate for the appellant submits that they are importing all the parts and components from their principal M/s. Toyota Kirloskar Motor Pvt. Ltd. They imported the subject goods i.e., Screw Tapping, from related party pending SVB finalization of the bills of entry, are assessed provisionally in respect of the Screw tapping listed under annexure to the invoices dated 06.11.2000 and 11.01.2001. In part no.935605602000 of Invoice No.KDB-86817  4000 pieces of Screw Tapping was wrongly mentioned as USD 16. 00 per piece as against the FOB price of USD 0.01 per piece. After clearance, the appellant realized the incorrectness in the unit price only at a later stage. The supplier refunded the excess of CIF value through banking channel vide Foreign Remittance Certificate Nos.0000686 & 0000687 both dated 12.04.2001. The principal supplier has made Inward Remittances o USD 32,755 equivalent to Rs.15,24,359/- as per the remittances each in respect of Invoice Nos. KDB-86817 and KDB-6377. These two invoices releated to the two bills of entry. He also submits that subsequently the department has accepted the transaction value and finalized all the bills of entry except two bills of entry related to the present appeal as an appeal pending before the Tribunal and also the original authority was of the view that refund could not be acceded pending finaisaion of assessment.

6. On the other hand, learned Authorised Representative reiterates the impugned order directly covered by the Apex court judgment in the cases of Priya Blue Industries Ltd. and Flock India as there was no dispute on the assessment and they have not

contested the assessment nor filed an appeal. The shipment dated were between Nov.00 and Jan.01 but the refund claim was filed in Apri.01 pending finalization of assessment. Despite repeated opportunities, the appellant had not given relevant documents before the Adjudicating authority. They have wrongly contended that the appellant had submitted the relevant documents. Therefore, learned Commissioner (Appeals) rejected the refund claim of the appellant. The appellant had filed refund claim only upon obtaining the remittances from their suppliers.

7. Heard both sides and perused the records. On perusal of the records, I find that the Assistant Commissioner (Refunds) has rejected the claim of the appellant only on the ground that the appellant had not produced any documents to substantiate their claim for refund before the Adjudicating authority. The lower appellate authority has also dismissed the appeal on the ground that the bill of entries were only provisionally assessed and are still pending before the department and relied on the Priya Blue case. As admitted by the appellant, these two subject bill of entries which were provisionally assessed not yet finalized so far. As such, they could not furnish the bill of entry before the assessing authority and also the appeal was pending before this Tribunal. Except for producing copy of the Certificate of Foreign Inward Remittances, the appellant failed to produce any other evidences in support of their claim for erroneous pricing of Screw Tapping of parts no.935605602000 of Invoice No.KDB-86817  4000 pieces - was mentioned as USD 16. 00 per piece as against the FOB price of USD 0.01 per piece. The appellant

could not produce any documents to show that the price of Screw Tapping is Re.0.015. Therefore, considering all the above facts and also considering the fact of provisional assessment is not yet finalized, the appellants claim for refund is premature. Therefore, the lower appellate authority has rightly dismissed the appeal. Accordingly, the appeal is dismissed.

(Order dictated and pronounced in open court)

(R. PERIASAMI) TECHNICAL MEMBER

ksr 16-02-2015

DRAFT Remarks

I II III

Date of dictation 23.01.2015

Draft Order - Date of typing 16.02.2015

Fair Order Typing .02.2015

Date of number and date of dispatch

7 C/00161/2005