PUNJAB CHEMICALS PLANTS LTD Vs. COMMISSIONER OF CUS.

JUDGEMENT

(1.) THE appellants herein imported one 1993 Model Mitsubishi Pajero Vehicle in terms of provisions contained in the ITC public Noitce No. 202/92 -97, dated 31 -3 -1994. The above mentioned vehicle was purchased by the appellants from M/s. Al Habtoor Motors Co. (LLC), Dubai, on 17 -5 -1993 for DH 72,600/ - and full payment thereof was made through M/s. Azhar Trading Estt. The appellants submitted a letter dated 6 -11 -1994 to the Assistant Collector of Customs requesting that the vehicle be assessed on the basis of the certificate dated 23 -9 -1994 issued by Mitsubishi Motor Corporation, Tokyo, Japan, certifying that the price of the vehicle was Rs. 16,00,000/ - Japanese Yen FOB and the same was inclusive of all accessories and airconditioners, after allowing for further discount of 15% which is admissible to all dealers. It was further explained by the appellants that the price of Rs. 16,00,000/ - Japanese Yen mentioned in the manufacturer's certificate dated 23 -9 -1994 was in fact the price charged to the dealer without allowing any discount as further clarified by Mitsubishi Motor Corporation by their certificate dated 29 -9 -1994. The Assistant Collector of Customs held that the price intimated by the manufacturer is not net price to the wholesale dealers all over the world and rather it appears from the certificate dated 23 -9 -1994 and 29 -9 -1994 from the manufacturers received by the importer on fax, that the price is especially for Middle East and African countries. In such a situation, it is difficult to accept such price as a basis for valuation when transaction value at which the importer purchased the impugned vehicle is available. He, therefore, held that invoice value of DH 72600 FOB, which represents the transaction value should be taken the FOB price for assessment purposes in terms of Section 14(1) of the Customs Act, 1962 with addition of freight from the country of manufacture and insurance. The total value of the car came to Rs. 5,29,132/ - on which total duty came to Rs. 7,05,903/ -. Aggrieved by the order -in -original passed by the Assistant Collector of Customs, the appeal was preferred by the importer to lower appellate authority, who upheld the order of the Assistant Collector, hence this appeal before us.

(2.) WE have heard Shri N. Ramanathan, Consultant and Shri S.P. Rao, JDR and perused the record. The importers placed reliance on the judgment of the Tribunal in the case of Prem Kumar v. Collector of Customs, reported in 1989 (40) E.L.T. 340 (Tribunal) in which the Tribunal has stated in para 3 that the valuation can be based upon manufacturers' net price to wholesale dealers and the discount of 10% can be given therefrom. The Tribunal has held that in case the World Car Catalogue price is not available to the Customs house, the Customs may ascertain the manufacturer's net price to the wholesale dealers in the course of International Trade in any other manner as may be accepted and if this course is also not feasible, the assessment may be maintained at the appellant's invoice price and there is no question of granting 15% discount on the individual export passenger's invoice price. It is the appellants' contention that once he has furnished manufacturer's net price to wholesale dealer which is to form the basis for assessment, the Department cannot go beyond the invoice price. On the other hand, ld. SDR submits it is clear from para 13 of the adjudication order that the course of ascertaining the manufacturer's net price to the wholsale dealer was not feasible because the certificate dated 23 -9 -1994 was issued from the manufacturers' Marketing Department fro Middle East and Africa indicating gross FOB price to the dealer, intimated by the manufacturer is not net price to wholesale dealer. He therefore, submits that the Department went by the invoice price and this is permissible and there is no reason to hold that the invoice price cannot be accepted.

(3.) ON consideration of submissions from both the sides, we agree with the ld. JDR that it is not possible to accept the manufacturer's price as can be seen from the Certificate, as a basis for valuation, in view of the reasons contained in the adjudication order and that the Department had rightly accepted the invoice price for the basis of assessments. In this view of the matter, we hold that there is no warrant to interfere with the order of the lower appellate authority and uphold the same. The appeal is rejected.