Page 26 - ELT_15th August 2020_Vol 373_Part 4

xxiv EXCISE LAW TIMES [ Vol. 373
VALUATION (CUSTOMS) :
— High Sea Sale Commission 2% Notional High Sea Sale Commission -
C.B.E. & C. Circular No. 32/2004-Cus., dated 11-5-2004 issued during the
period the unamended Section 14 of Customs Act, 1962 was in force -
Thus while there was scope for addition of notional charges in the
assessable value under the unamended Section 14 ibid but after the actual
sale price concept was introduced in the year 2007 on the basis GATT
guidelines and Section 14 ibid was amend in 2007 any inclusion of
notional charges seems to have lost its relevance and only actual cost
incurred by buyer is required to be considered - Thus 2% Notional High
Sea Sale commission could not have been added to assessable value —
Indian Farmers Fertilizers Co-Operative Limited v. Principal Commissioner of Customs,
Jamnagar (Tri. - Ahmd.) ................................. 530
— Purchase of urea by appellant from Government of India on High Sea Sale
- Whether service charges of ` 17 per MT paid by Government of India to
STE is includible in assessable value - TDS has also been deducted by
Government of India while making payment of service charges to STEs,
thus GOI itself treating the amount as commission paid to STEs - Urea
being a canalised item under the Foreign Trade Policy, import can only
be made through canalising agencies called the STEs - STE represents
Government of India abroad and foreign sellers know that urea will be
ultimately purchased by Government of India - Though, the terms used
in communications refer to “service charges”, but in fact they are “buying
commission” - Amount of ` 17 per MT has neither been paid by appellant
to Government of India nor appellant paid this amount to a third party,
hence amount could not have been included in the “transaction value”
under Rule 10(1)(e) of Customs Valuation (Determination of Value of
Imported Goods) Rules, 2007 - Also since payment of ` 17 per MT has not
been made as a condition of sale of urea by the Government of India to
appellant to satisfy an obligation of Government of India, this amount
cannot be added to transaction value under Rule 10(1)(e) of Customs
Valuation (Determination of Value of Imported Goods) Rules, 2007 —
Indian Farmers Fertilizers Co-Operative Limited v. Principal Commissioner of Customs,
Jamnagar (Tri. - Ahmd.) ................................. 530
Writ Petition - Maintainability of - Alternate remedy, availability of -
Rejection of claim for refund of terminal excise duty on account of lack of
enabling provision under para 8.3(c) of Foreign Trade Policy - Revenue
alleging impugned order subject to revision in terms of Regulation 16 of
Foreign Trade (Development and Regulation) Act, 1992 - HELD : Since
issue arising for consideration squarely covered by H.C.L. Limited [2001
(130) E.L.T. 405] and consistently by Court, no reason to relegate
petitioner to alternate statutory remedy - Article 226 of Constitution of
India — Manali Petrochemical Limited v. Additional Director General of Foreign Trade,
New Delhi (Mad.) .................................... 470

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EXCISE LAW TIMES  15th August 2020  26