2005 (7) TMI 224 - AT - Customs

Summary

Issues Involved:
1. Inclusion of technical know-how fee in the assessable value of imported capital goods.
2. Jurisdictional objection regarding consignments cleared through Mumbai Port.
3. Invocation of the extended period of limitation under Section 28(1) of the Customs Act.
4. Confiscation of goods and imposition of penalties under Sections 111(m) and 112(a)/114A of the Customs Act.

Issue-wise Detailed Analysis:

1. Inclusion of Technical Know-how Fee in the Assessable Value:
M/s. Continental Coffee Limited (CCL) imported capital goods under an EPCG Licence and paid a technical know-how fee of USD 288,000 to M/s. Brazilian Food Projects (BFP). The Directorate of Revenue Intelligence (DRI) alleged that this fee should be included in the assessable value of the imported goods. The adjudicating authority found that USD 130,000 of the know-how fee was related to the imported capital goods and added it to the assessable value under Rule 9(1)(b)(iv) and Rule 9(1)(c) of the Customs Valuation Rules, 1988. The Tribunal upheld this finding, stating that the technical know-how was essential for the erection and operation of the plant and was implicitly a condition of sale of the capital goods.

2. Jurisdictional Objection:
CCL raised an objection regarding the jurisdiction of the Commissioner of Customs, Chennai, to proceed against four consignments cleared through Mumbai Port. The Tribunal did not explicitly address this jurisdictional issue in the final judgment.

3. Invocation of the Extended Period of Limitation:
The show-cause notice invoked the extended period of limitation under Section 28(1) of the Customs Act, alleging wilful suppression of facts by CCL. However, the Tribunal observed that the assessments for the imported goods were provisional and had not been finalized. Therefore, the limitation under Section 28 did not apply, and a notice under this section could not have been issued for provisional assessments.

4. Confiscation of Goods and Imposition of Penalties:
The adjudicating authority had imposed a penalty equal to the duty amount and a redemption fine in lieu of confiscation. The Tribunal held that the issue of adding the technical know-how fee to the assessable value was debatable and did not involve deliberate suppression or misdeclaration by CCL. Consequently, the goods were not liable to confiscation, and the importers were not liable to any penalties. The Tribunal set aside the fine and penalty imposed by the Chief Commissioner.

Conclusion:
The appeal was partly allowed. The Tribunal directed the lower authorities to finalize the assessments, including the technical know-how fee in the assessable value of the capital goods. However, it set aside the penalties and confiscation orders, holding that no suppression or misdeclaration was involved. The bills of entry were to be finalized accordingly.