1999 (12) TMI 166 - AT - Customs

Summary

Issues:
1. Barred by Limitation - Show Cause Notice
2. Nature of Payment - Commission or Technical Advice
3. Imposition of Duty - Differential Duty Calculation

Analysis:

Issue 1: Barred by Limitation - Show Cause Notice
The appellant contended that the show cause notice issued was time-barred, challenging the sustainability of the Order-in-Original passed by the Collector. The Bill of Entry for the printing machine was filed on 27-1-1986, with provisional assessment and subsequent finalization in March 1989. The appellant deposited a sum post-final assessment, but the exact date was unknown. The argument of limitation under Section 28 of the Customs Act, 1962 was raised. However, the appellant's counsel did not press the point of limitation during the hearing. The Tribunal held that without knowing the date of deposit, the plea of limitation could not be sustained. Thus, the plea of limitation was rejected.

Issue 2: Nature of Payment - Commission or Technical Advice
The second contention revolved around the nature of the payment of Rs. 43,000.00 made by the appellant to M/s. J. Mahabeer & Co. Pvt. Ltd. The appellant claimed it was for technical advice, not commission. However, the contract indicated the payment as extra consideration for acquiring the machine, thus forming part of the purchase price. The Tribunal ruled that this amount should be treated as part of the machine's value, subject to duty payment.

Issue 3: Imposition of Duty - Differential Duty Calculation
Regarding the imposition of duty on 20% of the machine's value as commission payable to M/s. J. Mahabeer & Co., the Tribunal found the Collector's decision unjustified. The contract specified the payment of Rs. 43,000.00 to M/s. J. Mahabeer & Co. only, without evidence of additional payments. The Tribunal concluded that the duty should be imposed on the actual amount paid to M/s. J. Mahabeer & Co. and not on a percentage of the CIF value. Therefore, the Tribunal upheld the additional duty of Rs. 43,000.00, modifying the order to exclude the 20% differential duty calculation. The appeal was disposed of with this modification, confirming the Collector's order.

In conclusion, the Tribunal addressed the issues of limitation, payment nature, and duty calculation meticulously, providing clarity on the legal aspects and reaching a well-reasoned decision in the case.