M/S Walter Tools India Pvt. Ltd vs Cc (Import), Mumbai

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. C/86933/13-Mum (Arising out of Order-in-Appeal No. 99/MCH/AC/GVC/2013 dated 06.02.2013 passed by the Commissioner of Customs (Appeals), Mumbai.)

For approval and signature: Honbl Shri P.S. Pruthi, Member (Technical) Honble Shri Ramesh Nair, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? =====================================================

M/s Walter Tools India Pvt. Ltd.

: Appellant Versus

CC (Import), Mumbai : Respondent

Appearance Shri T. Viswanathan, Advocate : For Appellant Shri Ahibaran, Addl. Commr. (A.R.) : For Respondent

CORAM: HONBLE SHRI P.S. PRUTHI, MEMBER (TECHNICAL) HONBLE SHRI RAMESH NAIR, MEMBER (JUDICIAL)

Date of Hearing : 30.09.2015 Date of Decision: 30.09.2015

ORDER NO.......................................................

Per: P.S. Pruthi:

The appellant is in appeal against the order of Commissioner (Appeals) dated 06.02.2013.

2. The matter relates to import of goods by the appellant from their Principals in Germany and its associated entities. As admittedly the supplier and appellant are related in terms of Rule 2(2) of the Customs Valuation Rules, the case was examined by the SVB branch as per established practice. After examining the case, the Assistant Commissioner passed an order accepting the declared invoice prices under Rule 3(3)(a) of the said Rules. In appeal proceedings it was held by the Commissioner (Appeals) that various aspects of the transactions relating to pricing of the impugned goods have not been scrutinized. The Commissioner (Appeals), in conclusion, set aside the order passed by the Assistant Commissioner.

2. We have considered the facts of the case. On going through the order passed by the Commissioner (Appeals), we find the following observations:-

(i) In para 4 of the order, Commissioner (Appeals) states that the comparable invoices submitted by the appellant require scrutiny.

(ii) In para 5 of the order, Commissioner (Appeals) observes that the Management Service Agreement & IT Service Agreement between the supplier and importer require deep scrutiny.

(iii) In para 6 of the order, Commissioner (Appeals) observes that the issue of Management Service has not been examined properly.

After making all such observations, the Commissioner (Appeals) sets aside the order of the adjudicating authority. We fail to understand how the Order can be set aside without examining the complete facts or deciding the issue involved. After setting aside the Order, Commissioner does not give any finding on the value to be adopted, which is the main issue. The order reflects total non application of mind.

2.1 We also note the appellant had submitted voluminous documents before the Commissioner (Appeals). It appears that the Commissioner did not care to look at the records as if it is not the job of the Commissioner. If some records were not submitted, the Commissioner could have asked the appellant to produce the same. Therefore there is no option but to remand the matter back to the Commissioner for fresh decision after giving an opportunity for personal hearing.

2.2 We are constrained to comment that passing of such Orders not only speaks of total non application of mind but also has derailed the litigation process unnecessarily by 4 years. Because of these delays, the further Review Order for the period starting from 2014 is also pending as the present case has not attained finality.

3. We are informed by the learned Counsel for the appellant that they are being made to pay EDD of 1% of the value continuously. Board Circular No. 11/2011 dated 23.02.2011 requires that if the review is not completed within 4 months from the date of supply of information, the EDD shall not be continued. This is upheld by the Hon'ble Mumbai High Court judgement in the case of E I Dupont India Pvt. Ltd. Vs. UOI - 2014-TIOL-1315-HC-Mumbai Customs. In fact in the appellants own case, Tribunal has already passed Order No. M/1000/13/CSTB/C-I dated 10.06.2013 directing the Customs authority not to ask the appellant to make 1% deposit in respect of imports till the final disposal of the appeal. We note that neither the Commissioner (Appeals) has passed a reasoned Order as discussed above nor are Board instructions and judicial pronouncements being followed by Customs Authorities at the Ports.

4. The case is remanded back to the Commissioner (Appeals) who will decide the matter within three months of the receipt of this order as the issue is old pertaining to the period from 2009 onwards. Needless to add, the appellant will be provided an opportunity of personal hearing. Further, Customs is directed not to collect EDD of 1% in respect of all future consignments till the matter is finalised.

5. Appeal disposed in above terms.

(Pronounced in open Court)

(Ramesh Nair) (P.S. Pruthi) Member (Judicial) Member (Technical)

Sp

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APPEAL NO. C/86933/13-Mum