2019 (5) TMI 1107 - AT - Customs

Valuation of imported machinery - EPCG Scheme - addition of 50% of the supervision charges to the assessable value - post-importation charges - contract which appellant have entered into with their supplier includes an amount of EUR 460,000 towards supervision of erection, commissioning and performance guarantee tests of the equipment and machinery - HELD THAT - It is not in dispute that the charges for supervision of erection, commissioning and performance guarantee tests need not be included in the assessable value to the extent they represent post importation charges and to the extent they represent any charges for services rendered prior to importation, they are includable. Perusal of Article 3.1 of the contract shows that the entire amount of EUR 460,000 paid by the assessee to their supplier is towards supervision of erection, commissioning and performance guarantee tests in India. Therefore, the entire amount is for services rendered in India. Even otherwise, the supervision of erection, commissioning and performance guarantee tests cannot be done in the country of origin because a commissioned plant cannot be imported. Commissioning takes place after the import - there is no scope for interpreting these charges as meant for any services rendered in the country of origin. The entire charges for supervision of erection, commissioning and performance guarantee tests in India is not includable in the assessable value - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Inclusion of supervision charges in the assessable value.
2. Interpretation of the term "offshore" in the contract.
3. Refund of excess duty paid.
4. Assessment of charges for services rendered pre and post importation.

Analysis:
1. Inclusion of supervision charges in the assessable value:
The appellant imported machinery under the EPCG scheme and paid EUR 460,000 to their supplier for supervision of erection, commissioning, and performance guarantee tests. The lower authority added 50% of this amount to the assessable value, assuming half of the supervision charges were rendered pre-import and the rest post-import. The first appellate authority disagreed, stating the appellant must prove the percentage of charges for services post-import to be exempt from Customs Duty. The Tribunal found the entire EUR 460,000 was for services in India, as per the contract, and commissioning can only occur post-import, thus not includable in the assessable value.

2. Interpretation of the term "offshore" in the contract:
The confusion arose due to the term "offshore" in the contract. The appellant argued that the charges were for activities in India, evident from the contract's language. The term "offshore" was interpreted differently by the supplier (France) and the importer (India). The Tribunal concluded that the supervision charges were for services in India, as the contract explicitly mentioned activities in India, and commissioning cannot happen in the country of origin.

3. Refund of excess duty paid:
The first appellate authority ordered a refund of excess duty paid by the appellant. The Tribunal upheld this decision, emphasizing that the charges for supervision were solely for services in India and not part of the assessable value. Consequently, the appellant was entitled to a refund for the duty paid in excess of what was due on the supervision charges.

4. Assessment of charges for services rendered pre and post importation:
The Tribunal clarified that charges for supervision of erection, commissioning, and performance guarantee tests were not includable in the assessable value, as they were for services in India. The appellant successfully demonstrated that the entire EUR 460,000 was meant for activities post-importation, and thus, the impugned order was set aside, allowing the appeal with any consequential relief.

This comprehensive analysis of the judgment highlights the key issues addressed by the Appellate Tribunal CESTAT HYDERABAD and the reasoning behind their decision in each aspect.