Bijay Kumar ORDER
Bijay Kumar, Member (T)
1. The present appeal is filed by the appellant against the Order-in-Appeal No. CC(A)/CUS/D-1/Gen/NCH/23/2018 dated 12/2/2018 passed by the Commissioner(Appeal), wherein he has set aside the Order-in-Original No. SBB/CUS/Prev/140/RK/2014-15.
2. The brief facts of the case are that the Appellant is engaged in the manufacture of mechanical control cables, transmission cables and window regulators. The Appellant also imports various inputs which is mostly imported goods from their group companies, including Hi-Lex Corporation, Japan (Hi-Lex Japan) for use in the manufacture of final products.
3. The appellant has not executed any agreement with overseas related entities for purchase of imported goods. The price of imported goods is determined based on the price list which in turn is based on the various factors such as cost of raw-materials and technology involved in their manufacture, manufacturing and general over rates and profit margin. The appellant has executed a License and Technical Assistance (LTA) Agreement dated December 1st, 2005 with Hi-Lex, Japan. This agreement was substituted vide LTA agreement dated October 1st 2013. In terms of LTA agreement, the appellant has been granted a right to manufacture assemble and sell licensed product of their principal. The appellant mandated for the remittance of royalty of 1 percent of net selling price excluding value of the goods imported from overseas related entities. The appellant has also executed following agreements for its manufacturing activity from Hi-Lex Japan;
4. The appellant vide its later dated 29th January 2015 submitted the SVB questionnaire with the Customs Authority for the renewal of the SVB order. The SVB vide its order of March 2015(Original order) accepted the transaction value declared by the Appellant to be at the arms length and no hence adjustments were to be made under Rule 10 of the Customs Valuation(Determination of Price of Imported Goods) Rules 2007. Against this order, the appeal was filed before this Commissioner (Appeal) by the Revenue. After examining the grounds of appeal, the Ld. Commissioner (Appeal) set aside the order of the ld. Adjudicating Authority and allowed departmental appeal and hence this appeal.
5. The appellant has preferred the appeal on the ground that the pricing mechanism has been repeatedly examined and consistently accepted by the Department vide order dated 2nd February, 2009 and 29th February, 2012 wherein the department has accepted the order and had not challenged the same. Having not done so, these orders and the valuation mechanism as adopted by the appellant attended in its finality and cannot be disturbed at this point of time without any changed circumstances. The Appellant has relied upon the judgment of this Tribunal in case of CCE v. E.I. Dupont India Pvt. Ltd. final order no. 53360/2017 dated 21st April 2007. That the ld. Adjudicating Authority has passed the order after dully considering their balance sheet a copy of LTA agreement and other agreements and the specimen copies of Bills of Entry. The certificate was also issued by the Hi-Lex Japan certifying the price of imported good has been determined in normal course of business without being influenced by their relationship. The appellant has also filed affidavit before the Appellate Authority that there has been no challenge in the pricing mechanism since 2012 when the issue was examined by the SVB Branch of the Customs House. Therefore, the appellant is of the opinion that the impugned order quashing the subject Order-in-Original by the appellate authority is without the proper appreciation of the factual matrix of instant case.
6. The Commissioner (Appeal) has set aside the order of the ld. Adjudicating Authority on the ground that the Adjudicating Authority has not examined the balance sheet of the last three years, NIDB data of the re........