2014 (2) TMI 65 - AT - Customs

Valuation of goods - Enhancement in valuation - Mis declaration of goods - Demand of differential duty - Waiver of pre deposit - Held that - prima facie the payment of royalty/licence fee is a condition or a pre-requisite for the sale/supply of the goods and hence they form part of the transaction value in terms of the provisions of the Rules - cost of technical know-how and payment of royalty is includible in the price of the imported goods if the said payment constitutes a condition pre-requisite for supply of imported goods by the foreign supplier. On the other hand if such payment has no nexus with working of imported goods, then such payment was not includible in the price of imported goods. In the instant case as per the contract entered into by the appellant with the foreign supplier the payment made as royalty/licence fee are for the rights conferred by the supplier for exploitation of the material contained in the imported goods and the payment have to be made in advance and only thereafter, the supply of the goods was made. Therefore the payment of royalty and licence fee was a condition pre-requisite for the supply of the imported goods - appellant has not made out any prima facie case in their favour for complete waiver of pre-deposit of the dues adjudged - Conditional stay granted.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Inclusion of royalties and license fees in customs valuation.
3. Suppression of facts and invocation of the extended period for duty demand.
4. Requirement of pre-deposit for stay of recovery.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The appellants filed an application for condonation of a one-day delay in filing the appeals, attributing the delay to a defect in the appeals that needed rectification. The Tribunal found the reason satisfactory and condoned the delay, allowing the appeals to proceed.

2. Inclusion of Royalties and License Fees in Customs Valuation:
The appellant, M/s. Star Entertainment Pvt. Ltd. (SEPL), imported recorded media and paid duty based only on the cost of the media as declared by the courier agency. The department's investigation revealed that SEPL had paid license fees for the intrinsic content of the media but did not include these fees in the customs valuation. According to Rule 9(1)(c) of the Customs Valuation Rules, 1988, and Rule 10(1)(c) of the Customs Valuation Rules, 2007, royalties and license fees related to the imported goods must be included in the transaction value if they are a condition of the sale. The Tribunal noted that the payments were made in advance and were a pre-requisite for the supply of goods, thus forming part of the transaction value.

3. Suppression of Facts and Invocation of the Extended Period for Duty Demand:
The appellant argued that the royalties and license fees were for reproduction rights and should not be included in the customs value. They also contended that there was no suppression of facts as the value was declared by the courier agency. The Tribunal, however, found that the importer is responsible for declaring all payments made, including those not shown in the invoice. The Tribunal held that suppression was established, justifying the invocation of the extended period under Section 28(1) of the Customs Act, 1962. The Tribunal also referenced several judgments, including those of the Apex Court, to support the inclusion of royalties and license fees in the transaction value.

4. Requirement of Pre-Deposit for Stay of Recovery:
The Tribunal concluded that the appellant did not make a prima facie case for a complete waiver of pre-deposit. Considering the total duty demanded was approximately Rs. 80,00,000/-, and the appellant had already deposited Rs. 10,00,000/-, the Tribunal directed a further pre-deposit of Rs. 30,00,000/- within eight weeks. Upon compliance, the balance of the dues would be waived, and recovery stayed during the pendency of the appeals.

Conclusion:
The Tribunal condoned the delay in filing the appeals, upheld the inclusion of royalties and license fees in the customs valuation, confirmed the suppression of facts, and required a further pre-deposit for granting a stay on recovery. The decision emphasized the responsibility of importers to declare all relevant payments and the conditions under which royalties and license fees must be included in the transaction value for customs purposes.