Full Judgment
2. Shri G.S. Chaman, learned Advocate, submitted that the Appellate Tribunal while passing the Final Order No. 1194/99-A, dated 24-8-1999 did not pass any order regarding payment of interest @ 18% P.A. on the refund amount which may be due to the Appellants as a results of the Tribunal's Order; that the Delhi High Court in Elephanta Oil and Vanaspati Industries Ltd. v. U.O.I, 1994 (73) E.L.T. 43(Del.)/ ordered payment of interest @ 17.5% P.A. on the amount from the date of deposit till it was refunded. He also relied upon the decision in the case of Swastic Metals v. U.O.I., 1990 (49) E.L.T. 45 (Raj). He further, submitted that had the amount been invested in the market or put in fixed deposit it would have by now multiplied; that the Customs Authorities also charge interest on delayed payment of duty and as such rule of reciprocity and justice demands that he should be paid interest on refund of excess duty charged from him. He also mentioned that the Tribunal made a serious error in law in ordering the sale price of the car in U.K. as the declared price in the country of manufacture (Japan); that transaction of the car from Japan to U.K. did involve the element of freight, marine insurance and handling charges and dealer's commission; that sale voucher clearly mentioned that freight marine insurance and documentation had been included in the sale price; that it is well settled law that sale price of goods in a third country cannot be treated as the FOB value in the country of manufacture and export of these goods. In support of the contention, he relied upon the decision in the case of Unisef Electronics India Ltd. v. Collector of Customs, 1990 (49) E.L.T. 380 (T). He also relied upon the decision in the case of C.C.E. v. Wipro Information Technology, 1998 (99) E.L.T.343 (T) wherein it was held that for valuation (Customs), freight and insurance charges are deductible from the assessable value if these elements are included in the sale price. He finally referred to Rule 8(2)(iii) of Customs Valuation Rules which provides that no value shall be determined under the provision of this rule on the basis of the price of goods on the domestic market of the country of expertation because the domestic price is inclusive of the freight and handling charges and dealer's commission, etc.
3. Meeting the arguments, Shri S.P. Rao, learned D.R., submitted that there is no mistake apparent on record as the decision in Unisef Electronics India, Supra, was not cited before the Tribunal and as such there cannot be a mistake in not considering a ratio which was not relied upon by the Appellants. He, further, submitted that the interest on the amount of refund if any, will be payable as provided under the provisions of Customs Act, 1962.
4. We have considered the submissions of both the sides. Section 27A of the Customs Act provides for the payment on interest on delayed refunds. If there is any delay in sanctioning the amount of refund, if any, available to the Applicant as per the Tribunal's Order he can make a claim of the same from the Department. The applicant has not mentioned any provision of the Customs Act under which the Appellate Tribunal has the power to give interest @18% P.A. from the date of payment of duty. Section 129B of the Customs Act provides that the Appellate Tribunal may pass such order as it thinks fit, confirming, modifying or annulling the decision or Order appealed against or may refer the case back to the authority which passed decision or order for a fresh adjudication. The Hon'ble High Court directed the payment of interest in both the decisions, relied upon by the Applicant in exercise of powers conferred under Article 226 of the Constitution of India while deciding the Writ Petitions. Accordingly there was no mistake apparant on record of the case in not Ordering the payment of interest to the applicant.
5. Regarding valuation of the car the Applicant had not relied upon the decision in the case Unisef Electronics India Ltd. v. CCE, Supra, at the time of hearing of the appeal and as such not considering the same decision cannot be a mistake apparent on record. The other submissions made by the Applicant in respect of valuation were duly considered and order was pronounced. We also observe that the Commissioner (Appeals) had given reasonings in Order-in-Appeal for accepting the declared price relying upon the decision of the Appellate Tribunal. Accordingly, we do not find any mistake apparant on record of the final order and thus reject the Application.