Page 202 - ELT_15th August 2020_Vol 373_Part 4

536 EXCISE LAW TIMES [ Vol. 373

Amritsar [2008 (226) E.L.T. 477]; (c) Morgan Industries Ltd. v. Commis-
sioner of Customs, Chennai [2003 (161) E.L.T. 634 (Tri. - Chennai)] and
the decision of the Supreme Court in Apollo Tyres Ltd. v. Collector of
Customs [1997 (89) E.L.T. 7 (S.C.)];
(iii) The notional 2% High Sea Sale Commission could not have been in-
cluded in the assessable value of goods and therefore, Customs du-
ty was not required to be paid.
(iv) The extended period of limitation provided for under the proviso to
Section 73(1) of the Finance Act could not have been invoked either
in regard to non-payment of 2% Notional High Sea Sale Commis-
sion in the assessable value nor on the miscellaneous charges of
Rs. 17/- per MT as there was no wilful misstatement or suppression
of facts with an intent to evade payment of Service Tax.
11. Shri T.G. Rathod, Learned Authorized Representative of the De-
partment has, however, supported the impugned order and made the following
submissions :
(i) The Principal Commissioner was justified in coming to a conclusion
that the miscellaneous charges of Rs. 17/- per MT paid by the Gov-
ernment of India to STE would be included in the assessable value
in view of the provisions of Rule 10(1)(e) of the 2007 Valuation
Rules;
(ii) The Principal Commissioner was also justified in holding that 2%
High Sea Sale Commission should be included in the assessable
value in view of the decision of the Supreme Court in Hyderabad In-
dustries Ltd.;
(iii) The extended period of limitation was correctly invoked; and
(iv) The Principal Commissioner was justified in confiscating the goods
and imposing penalty.
12. The submissions advanced by the Learned Consultant for the Ap-
pellant and the Learned Authorised Representative of the Department have been
considered.
13. In order to appreciate the contentions it would be appropriate to
examine the salient features of the transaction that takes place and they are as
follows :
(i) Based on the future requirement of urea in the country and availa-
bility of domestic production, the Department of Fertilizers in the
Government of India assesses the import requirements;
(ii) Urea is a canalised item under the Foreign Trade Policy;
(iii) The Department of Fertilizer intimates the import requirements pe-
riodically to the canalising agencies called the STEs;
(iv) The STEs then call for a global tender and after identifying the for-
eign supplier, purchase the urea in bulk which is then sold to the
Government of India for which the STEs charges, apart from the
sale consideration paid by it to the foreign buyer, an additional sum
of Rs. 17/- per MT;
(v) Since the Department of Fertilizers is not in a position to distribute
the imported urea in the country, it invites quotation from
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