PERNOD RICARD INDIA (P) LTD. versus COMMISSIONER OF CUSTOMS, ICD TUGHLAKABAD

Citation: [2010] 8 S.C.R. 996 · Decided: 26-07-2010 · Supreme Court of India · Bench: D.K. JAIN · Disposal: Disposed off

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2010] 8 S.C.R. 996 
PERNOD RICARD INDIA (P) LTD. 
v. 
COMMISSIONER OF CUSTOMS, ICD TUGHLAKABAD 
(Civil Appeal No. 5840 of 2008) 
JULY 26, 2010 
[D.K. JAIN AND T.S. THAKUR, JJ.] 
Customs Act, 1962: s.130E - Statutory appeal filed 
C before Supreme Court u/s. 130E against the order of tribunal 
- Challenging the applicability of rule 6 of 1988 Rules -
Dismissal of appeal by Supreme Court by a non-speaking 
order - Held: Dismissal of appeal by Supreme Court was in 
exercise of appellate jurisdiction - Doctrine of merger would 
D be attracted and the appellant is estopped from raising the 
issue of applicability of Rf.lie 6 - Doctrine of merger -
Estoppel - Appeal before Supreme Court. 
Customs Valuation (Determination of Prices of Imported 
E Goods) Rules, 1988 - Rule 5(1)(c) - Transaction value -
"adjustment" in terms of Rule 5(1 )(c) for determination of value 
of goods imported - Tribunal's direction with regard to the 
adjustment on account of volume of the goods imported by 
the importer @ 20% in the price difference between each 
F variety of its imported goods and the corresponding import 
of the competitor - Held: Not justified - Adjustment can be 
granted only on production of evidence which establishes the 
reasonableness and accuracy of adjustment and higher 
volumes of goods imported would not be sufficient to justify 
G an adjustment - A commercial practice is not a conclusive 
evidence for determining real price of a consignment - In the 
absence of some documentary evidence indicating that any 
rebate/discount was given to the importer by the supplier, 
adjustments under Rule 5(1)(c) cannot be justified. 
H 
996 
PERNOD RICARD INDIA (P) LTD. v. COMMISSIONER 997 
OF CUSTOMS, ICD TUGHLAKABAD 
Appeal: Dismissal of statutory appeal vis-a-vis dismissal 
A 
of special leave petition by non speaking order - Distinction 
between. 
Appellant, a manufacturer of spirits, imported 
Concentrate of Alcoholic Beverages (CAB). The appellant 
8 
was a related person to the supplier. Two show cause 
notices were issued against the appellant proposing 
demand of differential custom duty in respect of imports 
for the period January 1995 to June ~000 and July 2000 
to May 2001. Against the first show cause notice, the 
C 
appellant filed a writ petition before High Court. The High 
Court directed that the notice issued under Section 28 of 
the Customs Act, 1962 should be treated as notice for 
finalisation of th·e provisional assessment. The 
Commissioner of Customs adjudicated up6n both the 
show cause notices and confirmed the demand of D 
Rs.40.37 crores as against the proposed demand of 
Rs.50.04 crores. Appellant filed appeal before tribunal. 
By order dated 25th March 2003, while accepting the 
claim of the appellant that CAB should be classified 
E 
under heading 2808.10, the Tribunal rejected the plea of 
the appellant that in spite of the fact that the supplier was 
a "related person", the value declared by them should be 
accepted in terms of Rule 4(3)(b) of the Customs 
Valuation (Determination of Prices of Imported Goods) 
F 
Rules, 1988. The Tribunal remanded the matter to the 
adjudicating authority for a fresh consideration on the 
question of applicability of Rule 6. 
The appellant challenged the order before Supreme 
Court by way of appeal under Section 130E of the Act G 
which was dismissed on 21st November, 2003. 
Pursuant to the order of the Tribunal, dated 25th 
March 2003, the Commissioner passed a fresh order 
3. 
(1988) 4 sec 409. 
H 
998 
SUPREME COURT REPORTS 
(2010) 8 S.C.R. 
A dated 29th August 2003 and held that Rule 6 was 
applicable on the facts of the instant case. He 
accordingly, confirmed the demand of duty of customs 
amounting to Rs.39.96 crores. The said order was again 
challenged by the appellant in the tribunal, mainly on the 
B ground that the value of imported CAB could not be 
determined under Rule 6. In the alternative, it was 
pleaded that even the quantification of the value under 
Rule 6 was seriously flawed. The tribunal observed that 
the applicability of Rule 6 was left to the adjudicator in 
c the remand order and no appeal was filed thereagainst. 
The Tribunal again set aside the order of adjudication by 
the Commissioner and remanded the matter to him with 
certain directions by order dated 29th June, 2005. 
Pursuant thereto, the Commissioner passed a fresh 
0 adjudication order on 20th June 2006, confirming a total 
differential duty of Rs.40.37 crores. 
The appel

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