Full Judgment
The present application is for waiver of predeposit and stay of recovery in respect of this amount of duty.
2. After examining the records and hearing both sides, we find that, in the bill of entry, the appellants had declared the goods as above and had declared its unit price as US$ 0.121 per kg. (FOB). After adding 20% of the value towards freight and 1:125% towards insurance, the importer paid duty on the assessable value of Rs. 1,46,383/- and the goods were cleared accordingly under an out-of-charge order issued by the proper officer of Customs. Subsequently, the same officer issued a show-cause notice to the party demanding the above differential duty based on a contemporaneous import borne on NIDB data. The unit price of the goods covered by the contemporaneous import was US$ 1.224 per kg.
for a local quantity of 5100 kgs. of 'Copper clad laminated off-cuts' imported from Germany. This demand was contested on legal and factual grounds. The Assistant Commissioner confirmed the demand of duty in adjudication of the dispute and the first appellate authority sustained it. Hence the present appeal and application.
3. It appears from the submissions of learned Consultant that the price of goods paid by them to the foreign supplier was based on the unit price US$ 0.121 per kg. as evidenced by the 'letter of credit' and a letter of the supplier. It is argued that this price being the transaction value should be the basis of assessment. It is also submitted that, though the original authority considered numerous entries in NIDB data, the appellate authority found only one entry which was applicable to the subject import. That entry relates to import of a total quantity of 5100 kgs. of the same goods from Korea.
The subject import is from Germany. According to learned Consultant, the unit price mentioned in NIDB data in respect of 5100 kgs. of goods imported from Korea can hardly be the basis for assessment of 22,000 kgs. Of goods imported from Germany. It is also his submission that other particulars in the bill of entry relevant to the contemporaneous import were not furnished to the assessee. Learned Consultant has also reiterated the legal objections raised by the party in their reply to the show-cause notice as to jurisdiction of the Assistant Commissioner of Customs in demanding differential duty after having completed assessments' of the goods and issued out-of-charge order. Learned SDR reiterates the findings and observations of the Assistant Commissioner and Commissioner (Appeals). After carefully considering the submissions, we are of the view that waiver of predeposit and stay of recovery should be granted in this case inasmuch as the demand of differential duty based on NIDB data pertaining to import of a much smaller quantity of the goods from a different country is not prima facie sustainable. The jurisdictional objection will be considered at the final hearing stage.