2016 (9) TMI 931 - AT - Customs

Valuation under section 14 of Customs Act, 1962 - inclusion of royalty payable to overseas entity in the assessable value - master tapes - rule 9 of Customs Valuation Rules, 1988 (or rule 10 of Customs Valuation Rules, 2007) - rejection of declared value under rule 10A of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 - transaction value - cost and services - Held that - the case Collector of Customs (Preventive) v. Essar Gujarat Ltd 1996 (11) TMI 426 - SUPREME COURT OF INDIA can be referred to, where the decision does not impact upon such imports which can draw a distinction between royalty on goods imported and royalty as a post-importation condition. Of particular import are the propositions that mere existence of royalty clause in a contract which also covers import of goods does not, ipso facto, mandate adjustment of transaction value. The connection with imported goods must conform to the prescriptions in rule 9 of Customs Valuation Rules, 1988 (or rule 10 of Customs Valuation Rules, 2007). It is abundantly clear from the above narration that royalty is hinged upon post-importation manufacture and not on the imported goods per se. The impugned order has erred in including the royalty amounts in the valuation of the master tapes that were imported. Appeal allowed - decided against Revenue.

Summary

Issues Involved:
1. Includibility of royalty in the assessable value of imported goods.
2. Invokability of the extended period of limitation.
3. Recourse to confiscation-cum-penal provisions.

Detailed Analysis:

1. Includibility of Royalty in Assessable Value:
The core issue revolves around whether royalties paid to overseas entities should be included in the assessable value of imported goods. The appellant-importer, M/s Saregama India Ltd, imported 'master tapes' loaded with feature films. The adjudicating authority included royalties in the assessable value under rule 9(1)(c) of the Customs Valuation Rules, 1988. However, the Tribunal found that the declared price was rejected under rule 10A without following the sequential application of rules 5 to 8, as prescribed. The Tribunal emphasized that rule 9 should adjust declared value components, not rejected prices. Furthermore, the Tribunal noted that the royalty payments were for post-importation activities, specifically the replication and sale of pre-recorded media, not for the imported 'master tapes' themselves. Therefore, the inclusion of royalties in the assessable value was deemed improper.

2. Invokability of Extended Period of Limitation:
The adjudicating authority invoked the extended period of limitation, alleging suppression of facts by the appellant. However, the Tribunal found no evidence of deliberate suppression or intent to evade duty. The imports were made through the authorized courier mode, and there was no specific prohibition against this method. The Tribunal highlighted that the adjudicating authority's reliance on the decision in Associated Cement Companies Ltd v. Commissioner of Customs was misplaced, as the circumstances were not analogous. Consequently, the extended period of limitation was not applicable.

3. Recourse to Confiscation-Cum-Penal Provisions:
The adjudicating authority imposed penalties and ordered confiscation, alleging that the appellant used the courier mode to evade customs scrutiny. The Tribunal disagreed, stating that the Courier Imports & Exports (Clearance) Regulations, 1998, did not prohibit the use of courier mode for the disputed imports. The Tribunal also noted that the adjudicating authority failed to establish that the appellant deliberately suppressed the license agreements. Therefore, the recourse to confiscation-cum-penal provisions was unwarranted.

Conclusion:
The Tribunal allowed the appeals of the assessee and its employees, setting aside the impugned order. The Tribunal held that the inclusion of royalties in the assessable value was incorrect, the extended period of limitation was not invocable, and the confiscation-cum-penal provisions were unjustified. The appeals filed by Revenue were dismissed, and consequential relief was granted to the appellants.