2016 (9) TMI 830 - AT - Customs

Valuation - inclusion of royalty in the value of imports - collaboration agreement - related party - M/s.Herbalife USA holds 75% of the equity in Herbalife International India Pvt. Ltd - import of material from Herbalife USA - valuation by SVB - Rule 2(2) of the Customs Valuation Rules, 1988 - royalty paid by the importer under the agreement relates to the manufacturing process of product to be manufactured in India or to the manufacture of imported goods - Rule 9(1)(C) of the Customs Valuation Rules, 1988 - rules of interpretation - Rule 12 of the Customs Valuation Rules, 1988 - Held that - the decision of the Hon ble Apex Court in the case of Matsushita Television & Audio (I) Ltd 2007 (4) TMI 5 - SUPREME COURT OF INDIA is relied upon. Only such royalty which is relatable to the imported goods and which is a condition of sale of such goods alone could be added to the declared price - the license and technical assistance agreement entered between the appellant and the Herbalife, USA provide for transmission of technical information and grant of license and involves consideration in the shape of royalty. Running royalties are condition of sale for the transaction value and thus needs to be added in the value for the purpose of payment of Customs duty. Appeal allowed - decided partly in favor of appellant.

Issues Involved:
1. Whether the royalty paid by the importer under the agreement relates to the manufacturing process of the product to be manufactured in India or to the manufacture of imported goods.
2. Whether the royalty payments are a condition of the sale of the imported goods and should be added to the transaction value under Rule 9(1)(c) of the Customs Valuation Rules, 1988.
3. Applicability of the decisions of the Hon’ble Supreme Court in similar cases to the present case.

Detailed Analysis:

1. Relation of Royalty to Manufacturing Process:
The learned AR argued that the Commissioner (Appeals) erred in holding that the royalty paid by the importer under the agreement relates to the manufacturing process of the product to be manufactured in India and not to the manufacture of imported goods. The technical information supplied as part of the royalty agreement includes raw materials data and expertise, which is essential for manufacturing the final products in India. Without this technical know-how, the final production cannot be manufactured to the required standards.

2. Condition of Sale and Addition to Transaction Value:
The learned AR contended that Rule 9(1)(c) of the Customs Valuation Rules, 1988 imposes two conditions: (i) royalties/fees must be related to the imported goods, and (ii) such royalties/fees must be paid directly or indirectly as a condition of the sale of the goods being valued. The lump-sum payment and running royalty are argued to be related to the imported goods and a condition of sale of goods being valued. The learned Counsel for the appellants argued that there is no correlation of the royalties with the imported goods as the royalties are only in respect of material sold in India. He elaborated on the interpretive notes prescribed under Rule 12 of the Customs Valuation Rules, 1988, which state that payments for the right to distribute or resell the imported goods shall not be added to the price actually paid or payable if such payments are not a condition of the sale for export to the country of importation.

3. Applicability of Supreme Court Decisions:
The learned Counsel relied on the decision of the Apex Court in the case of Ferodo India Pvt. Ltd. and the Tribunal's decision in the case of Can Pack (India) Pvt. Ltd., which was upheld by the Hon’ble Apex Court. However, the Tribunal found that the facts of the instant case are similar to those in the case of Matsushita Television & Audio (I) Ltd., where the Hon’ble Supreme Court held that the royalty payment was connected with the imported components and became a condition of sale of the finished goods. The Tribunal noted that in Matsushita, the royalty payment was computed on the net ex-factory sale price, including the cost of imported components, satisfying the conditions of Rule 9(1)(c).

Conclusion:
The Tribunal concluded that the running royalty paid in the instant case is a condition for the sale of the raw materials and needs to be added to the transaction value. However, the lump sum amount of royalty paid does not fall under this condition. Therefore, the running royalties are a condition of sale for the transaction value and need to be added for the purpose of payment of Customs duty. The appeal was partly allowed on these terms.

← Previous Next →