PANACEA BIOTECH LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Assessee-The appellant herein was served with a show cause notice dated 12th April, 2001 under Section 124 of the Customs Act, 1962 (hereinafter referred to as the Act ) as to why the value of design engineering and site run for fermenter system should not be added in the value of machine under Rule 9 read with Rule 4 of the Customs Valuation Rules, 1988 and as to why duty of Rs. 49,86,227/- at the rate of 35% + 10% + 16% + 4% under CTH 8479.89 be not recovered and action taken under the Act or any other law. Issue regarding classification was also raised as to whether fermenters should be assessed under Entry 8419.89 as contended by the assessee or under 8479.89 as contended by the revenue. Another aspect which was covered by the notice was as to whether the goods were liable to be confiscated warranting demand of redemption fine. Notice also mentioned as to why penalty should not be levied under Section 112(a) of the Act.

(2.) The issues regarding confiscation and penalty have been decided in favour of the assessee. The revenue has not filed any appeal against the same. The same have, therefore, attained finality. In so far as the issue regarding classification is concerned, though the Tribunal has decided the same against the assessee, however accepting the alternative submission of availability of benefit of Notification No. 16/2000-Cus. the matter has been remanded to the Adjudicating Authority. It has been stated that the benefit has subsequently been granted to the assessee by the Tribunal in different proceedings. Therefore, the assessee is not pressing the issue of classification in the present civil appeal.

(3.) The only point which survives for consideration is regarding the includability of charges paid for importation of design engineering and site run in the assessable value of the fermenters. The show cause notice was based on the invocability of Rule 9(1)(b) and Rule 9(1)(e) read with Rule 4. The Tribunal has not referred to either of these rules while deciding the question of includability of the charges for importation of design engineering and site run in the assessable value of the fermenters. Another point raised by the assessee was that design engineering and site run had already been assessed separately under Chapter 49. The Tribunal has not decided as to what is the effect of exigibility of the design engineering and site run under Chapter 49. Since the Tribunal has failed to record a finding regarding applicability or otherwise of Rule 4, Rule 9(1)(b), Rule 9(1)(e) and the assessment already made of design engineering and site run under Chapter 49, we set aside the finding recorded by the Tribunal and remit the case to the Tribunal to re-decide the issue regarding includability of charges paid for importation of design engineering and site run in the assessable value of the fermenters afresh in the light of Rule 4, Rule 9(1)(b), Rule 9(1)(e) and the assessment already framed under Chapter 49 of design engineering and site run.