ORDER
G.P. Agarwal, Member (J)
1. In these bunch of appeals, the following issues are involved –
(1) whether in the computation of assessable value notional landing charges added by the Department is without basis, as according to the appellants the assessable value is only the C.I.F. value?
(Appeals listed as serial numbers 1 to 34 and at serial numbers 116 to 131);
(2) whether levy of additional duty of customs should be on the basis of C.I.F. value as done by the Department or that the additional duty is to be levied and collected on the value as defined in Section 14 of the Customs Act, 1962?
(Appeals listed as serial numbers 1 to 23,35 and 116 to 118); and
(3) whether the packing charges are to be excluded from the assessable value in the present cases in terms of exemption Notification No. 184/76 – Cus., dated 2-8-1976? (Appeals listed at serial numbers 13, 24 to 34, 36 to 112,116 to 120 and 132 to 153).
2. When these cases were called upon, Dr. V. Gowrishanker, Senior Advocate with Shri Manoj Arora, Advocate appeared on behalf of the appellants M/s. Indian Organic Chemicals Ltd.
Ms. Amita Mitra appeared on behalf of the appellants M/s. Goodyear India Ltd. Rest of the appellants requested for a decision on merits in their absence. Accordingly the Bench heard the said Ld. Counsel and Smt. C.G. Lal, Ld. SDR and perused the records.
3 At the outset Dr. V. Gowrishanker, Ld. Senior Advocate with his usual fairness submitted that all the said issues stand decided against the importers of the goods and in favour of the Revenue by a series of judgments and cited the following cases –
(1) Regarding Landing Charges –
Ceat Tyres of India Ltd. v. Collector of Customs, 1990 (49) E.L.T. 387.
Collector of Customs, Madras v. Coromandel Fertilizers Ltd., 1988 (33) E.L.T. 451.
Madras Rubber Factory Ltd., Madras v. Collector of Customs, Madras, 1987 (31) E.L.T. 313.
B.S. Kamath & Co. and Ors. v. U.O.I., 1986 (24) E.L.T. 456.
(2) Regarding additional duty (c.v. duty)
Apar Private Ltd. v. Union of India, 1985 (22) E.L.T. 644. Ashok Traders v. Union of India, 1987 (32) E.L.T. 262.
(3) Regarding Packing Charges
Polyset Corporation v. Collector of Customs, 1985 (21) E.L.T. 48.
After citing the case law as aforesaid he added that he reserves the right of the appellants to challenge the correctness of the said decision if the appellants choose to pursue the matter before the Apex Court.
4. In reply, Smt. Lal, Ld. SDR while supporting the impugned Orders-in-Appeal cited the case of Barium Chemicals Ltd. v. Union of India, 1988 (37) E.L.T. 327 wherein the Andhra Pradesh High Court held that exemption from customs duty applies to basic customs duty and not to additional duty of customs and further that levy of additional duty of customs in addition to basic customs duty is constitutionally valid and not violative of Arts. 19 and 300A of the Constitution of India and that landing charges and stevedoring charges are also includible in the assessable value for the purpose of customs duty as well as for additional duty. She also cited the case of Khandelwal Metal and Engineering Works v. Union of India, 1985 (20) E.L.T. 222 wherein the nature and scope of additional duty under Section 3(3) of the Customs Tariff Act was considered and discussed. On the point of claim of packing charges she cited the Final Order Nos. 468 to 597/92-A, dated 29-10-1992 passed by this Tribunal in Appeal Nos. C/1173/85-A and 129 others filed by the present appellants, namely, M/s. K. Hargovind Dass and Co., M/s. Chhaganlal & Sons, M/s. Kamal Traders and M/s. Raj Industries with respect to their other imports wherein it was held that the benefit of the said Notification 184/76-Cus., dated 2-8-1976 cannot be extended. For this view reliance was placed on a decision of the Apex Court rendered in the case of Hemraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat reported in 1978 (2) E.L.T. J 350).
5. Before we consider the aforesaid issues involved in the present appeals, it would be advantageous to state the brief facts of the case. In all these cases the appellants imported different goods on different dates under different bill of entries and paid the duty but subsequently claimed the refund of the duty paid on the ground that in the computation of assessable value notional landing charges were added by the Department and further that the Revenue erred in levying additional duty of customs on the basis of c.i.f. value as according to the appellants adding of customs duty and auxiliary duty amounts to the c.i.f. value of imported goods tantamounts to levy of a tax on a tax leading to double taxation and further that packing charges should not have been included in the assessable value as the value of the packages or the containers was fully exempt in terms of Customs Notification 184/76, dated 2-8-1976. The authorities below rejected the said claim of the appellants inter alia holding that the value for assessment in terms of Section 14 of the Customs Act, 1962 is the price for delivery at the time and place of importation which would mean that it was inclusive of all costs – whatever name it is called – for purposes of delivery of the goods to the importer in question. Landing charges are charges which form part of the total cost of making the goods available for delivery to the importer at the place of importation. Hence the inclusion in the assessable value has the sanction of law as envisaged under Section 14 of the Customs Act, 1962. As regards the levy of additional duty, the authorities below had held that the addition of customs duty under the First Schedule and auxiliary duty in arriving at the ssessable value is authorised by the Customs Act, 1962 and Section 3 of the Customs Tariff Act. With respect to the claim of the appellants for benefit of Notification 184/76-Cus., dated 2-8-1976, the authorities below held that the goods at the time of importation includes the packing charges which are normal packing as envisaged in the notification and it is for these reasons that the packing materials have not been subjected to a separate levy of customs duty on merits but the claim of the appellants for refund on a telax message etc. purporting to give separate packing cost is based on misconception of the scope of the notification in question.
6. After giving due consideration to the submissions made by the parties as aforesaid and considering the case laws cited at the Bar, we are of the view that the impugned orders passed by the authorities below are in line with the ratio of the said cases. In the case law cited as aforesaid under the heading Landing Charges it was held that landing charges are includible in assessable value and the same (landing charges) are to be calculated as a percentage of c.i.f. value taking into account total value of imports and total landing charges [see Ceat Tyres of India Ltd. v. Collector of Customs, (supra)]. In the case of Ashok Traders v. Union of India (supra) it was held by the Bombay High Court that Section 3(2) of the Customs Tariff Act is constitutionally valid and for purposes of c.v. Duty the assessable value of the imported goods is the aggregate value of the imported goods plus customs duty chargeable on that article. In the case of Polyset Corporation (supra) the Bombay High Court after considering the ambit and scope of exemption Notification 184/76-Cus. held that what are exempt under this exemption notification from the duty leviable are the goods imported or exported in packages or any portion of the value of the goods so imported. In other words, if packages as such are subject to customs duty they would be exempt from duty. Even then it is not every packages imported that is exempt, it is only when the goods are imported or exported in packages that such packages are exempt provided they satisfy the other conditions laid down in the notification. It was made clear that the said notification does not permit the valuation of goods in packages split up into principal goods and packages and exempt the packages from duty. In the instant case the authorities below have held that the appellants did not satisfy the conditions of the said notification. The same views were reiterated by this Tribunal in the case of K. Hargovind Dass & Co., Chhaganlal & Sons and Ors. – Final Order Nos. 468 to 597/92-A, dated 29-10-1992 (supra). Thus following the ratio of the said decisions we do not find any infirmity in the impugned orders passed by the authorities below. Consequently, we uphold the impugned orders and reject the appeals.