Customs Act, 1962: s.130E - Statutory appeal filed 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 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 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 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 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. 

Appeal: Dismissal of statutory appeal vis-a-vis dismissal of special leave petition by non speaking order - Distinction between. Appellant, a manufacturer of spirits, imported Concentrate of Alcoholic Beverages (CAB). The appellant 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 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 upon 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 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) 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 which was dismissed on 21st November, 2003. Pursuant to the order of the Tribunal, dated 25th March 2003, the Commissioner passed a fresh order 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 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 adjudication order on 20th June 2006, confirming a total differential duty of Rs.40.37 crores. The appellant challenged the said order by preferring yet another appeal to the Tribunal. The Tribunal upheld the decision of the Commissioner in determining the value of the imports under Rule 6. However, partly accepting the appeal, the tribunal directed adjustment @ 20% in the price difference between each variety of CAB of the appellant and the corresponding CAB of the competitor on account of higher volume of imports by the appellant for determining the value of import of CAB. Dissatisfied with the direction/order of Tribunal both the parties filed the appeals.