ORDER
C.N.B. Nair, Member (T)
1. Heard both sides.
2. The appellant imported Hepatitis-B Vaccine consignment from its holding company. Under the impugned order the transaction value has been rejected for the purpose of assessment to Customs duty and goods ordered to be assessed at the list price of the holding company. The consignment has also been confiscated and penalty imposed.
3. The contention of the learned Counsel is that even though the parties are related, the transaction value was required to be accepted as relationship had not affected the sale price. It is being submitted that the Indian resale price of the imported vaccine makes this clear. It is also being submitted that the consignment in question was manufactured against WHO order; but WHO did not list the entire quantity produced. He has also submitted that it is well settled that [Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai – 2000 (122) E.L.T. 321 (S.C.)] that imported goods could not be assessed based on list price alone inasmuch as list price is only indicative and real sales take place at discount. Learned Counsel has submitted that, in any event, there was no misdeclaration involved and confiscation of the goods was unjustified.
4. We have heard learned SDR and perused record. The transaction is admittedly between related persons. Therefore, its commercial nature is required to be established. Except that the payment made is at the transaction price, the appellant has no material to show that the transaction was not affected by the relationship. Even though a submission is being made that the consignment imported was the left over part of production for WHO, the sale price to WHO or any other relevant particulars about that sale have not been made available. May be, the appellant considers the production of such material to be of no practical use inasmuch as it had cleared the vaccine after payment of duty at the enhanced value and resold the same and it is not in a position to prove that higher amount of duty has not been passed on to the buyer. Whatever be the reason for nondisclosure of details, it remains that the submission relating to production for WHO is of no assistance in determining whether the transaction price with the holding company was at a purely commercial price. The position is the same in respect of resale price also, as it is few multiples of the landed price. In view of these, we are of the opinion that enhancement of assessable value is not to be interfered with.
5. On the question of misdeclaration, it is seen that the appellant has not misdeclared any particulars. The relationship between the parties and the transaction value have not been concealed or mis-stated. The dispute is a purely legal one. The charge of misdeclaration has been incorrectly made. Therefore, confiscation of the goods and imposition of penalty were not warranted. We, set aside the order relating to confiscation and imposition of penalty. The appeal is thus partly allowed.
[Pronounced and dictated in the open Court].