1996 (11) TMI 426 - SC - Customs

Whether the licence fees paid should be added to the invoice value of the plant bought? - Held that -Process licence fee paid being the cost of technical services provided and a sum of on account of engineering and consultancy fee payable to V.A., should be added to the value of the imported plant. Appeal allowed.

Issues Involved:
1. Whether the licence fees paid to Midrex should be added to the invoice value of the plant bought by EGL.
2. The relevance of the agreements between EGL, TIL, V.A., and Midrex.
3. The applicability of Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988.
4. The impact of Section 14 of the Customs Act on the valuation of imported goods.
5. The inclusion of technical services and engineering consultancy fees in the value of the imported plant.

Issue-wise Detailed Analysis:

1. Licence Fees Addition:
The primary dispute is whether the licence fees paid to Midrex should be included in the invoice value of the plant bought by EGL. The Court observed that the agreements between EGL and TIL, and subsequently with V.A. and Midrex, indicated that obtaining a licence from Midrex was a pre-condition for the sale of the plant. The Court noted, "Without a licence from Midrex, the plant would be of no use to EGL." Thus, the overriding clause mandating the licence was deemed a condition of sale, and the licence fees were rightly added to the plant's purchase price.

2. Agreements Between Parties:
The Court examined the agreements between EGL and TIL, V.A., and Midrex. The agreement with TIL was contingent upon obtaining a licence from Midrex, which was essential for the plant's operation. The agreements with V.A. and Midrex further reinforced that the plant was based on the Midrex process, requiring the Midrex licence to be functional. The Court stated, "Reading all these agreements together, it is not possible to uphold the contention that the pre-condition of obtaining a licence from Midrex was not a condition of sale."

3. Rule 9 of Customs Valuation Rules:
Rule 9(1)(c) of the Customs Valuation Rules stipulates that royalties and licence fees related to the imported goods that the buyer is required to pay as a condition of the sale must be added to the transaction value. The Court concluded that the licence fees paid to Midrex were related to the imported plant and were a condition of the sale, thus falling within the ambit of Rule 9. The Court emphasized, "Licence fees paid to Midrex will have to be added to the price of the plant to arrive at the transaction value of the plant."

4. Section 14 of the Customs Act:
Section 14 of the Customs Act aims to determine the value of imported goods for customs duty purposes. The Court noted that EGL's purchase of the Midrex Reduction Plant required the Midrex licence and technical know-how to make the plant operational. The Court stated, "The value of the plant will comprise of not only the price paid for the plant but also the price payable for the operation licence and the technical know-how."

5. Technical Services and Engineering Consultancy Fees:
The Court examined the payments for technical services and engineering consultancy fees under the agreements with V.A. and Midrex. The payment of DM 10,100,000 for technical services under the Process Licence Agreement with Midrex was deemed essential for the plant's operation and thus included in the plant's value. However, the payment of DM 23,100,000 for engineering and consultancy fees was partially included, with only 10% of this amount added to the plant's value, as it covered services necessary for dismantling and making the plant ready for delivery. The Court concluded, "DM 2,000,000 being the process licence fee paid to Midrex Corporation, DM 10,100,000 being the cost of technical services provided by Midrex and a sum of DM 2,310,000 being payment on account of engineering and consultancy fee payable to V.A., should be added to the value of the imported plant."

Conclusion:
The Court held that the licence fees and certain technical service fees must be added to the invoice value of the imported plant, as they were essential for the plant's operation and were conditions of the sale. The Tribunal's decision was set aside, and the appeals were disposed of accordingly, with no order as to costs.

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