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2016 (10) TMI 859 - AT - CustomsProject Import - valuation - drawing and documents for use during construction, erection, assembly etc and know how fees to be included in assessable value? - the case of COLLECTOR OF CUSTOMS (PREV.), AHMEDABAD Versus ESSAR GUJARAT LTD. 1996 (11) TMI 426 - SUPREME COURT OF INDIA referred - Held that - the judgment of Essar Gujarat Ltd. is clearly applicable as the issue is similar where it was held that Process licence fee paid being the cost of technical services provided and a sum of on account of engineering and consultancy fee payable to V.A., should be added to the value of the imported plant. It is clear that the foreign supplier of the machine is under obligation to provide the technical know how and training along with supply of the machine. Therefore, the technical know how is the integral condition of the supply agreement. Thus it is a condition of sale of the machine. In such situation, the technical know how fees was rightly added to the extent of 10% as decided in the case of Essar Gujarat Ltd. On going through the said judgment, we find that even technical services, engineering and consultancy even provided by the third party, the fees thereon was held to be added in the value of the imported capital goods under Rule 9 of the Customs Valuation Rules, 1988. 10% towards technical know how includible in the value of the goods - appeal dismissed - decided against appellant.
Issues:
- Inclusion of know-how fees in the assessable value of imported goods under project import heading. - Application of Rule 9(1)(c) for adding 10% know-how fees. - Interpretation of judgments in Essar Gujarat Ltd. and Tata Iron & Steel Co. Ltd. - Consideration of technical know-how as a condition of sale of the machine. Analysis: 1. Inclusion of Know-How Fees: The appellant imported goods under Project Import Heading 98.01 and had two contracts specifying payments for technical documentation and supervision. The adjudicating authority, following the Supreme Court's decision in Tata Iron & Steel Co. Ltd., excluded the know-how fees from the assessable value. However, the authority added 10% of the fees based on the Essar Gujarat Ltd. judgment during final assessment. The Commissioner (Appeals) upheld this inclusion, considering technical know-how as integral to the sale agreement, leading to the addition of 10% in the value of imported goods. 2. Application of Rule 9(1)(c): The appellant argued that the 10% addition of know-how fees was not a condition of sale and relied on the Polar Marmo Agglomerates Ltd. case. However, the Tribunal found that as per the contract, technical know-how was an essential part of the supply agreement, making it a condition of sale. Therefore, Rule 9(1)(c) was correctly applied to add 10% of the fees to the assessable value. 3. Interpretation of Judgments: The Tribunal analyzed the Essar Gujarat Ltd. judgment, emphasizing that even third-party technical services' fees were to be included in the value of imported goods under Rule 9. The Tribunal distinguished the Tata Iron & Steel Co. Ltd. case, stating that its facts were not applicable to the present scenario. The Tribunal agreed with the Commissioner (Appeals) that 10% towards technical know-how should be part of the goods' value. 4. Technical Know-How as a Condition of Sale: The Tribunal concluded that the technical know-how and training were integral to the supply agreement, making it a condition of sale. Therefore, the 10% addition of know-how fees was deemed appropriate, aligning with the Essar Gujarat Ltd. judgment's principles. The Tribunal dismissed the appeal, affirming the inclusion of 10% of the technical know-how fees in the value of the imported goods. In summary, the Tribunal upheld the inclusion of 10% of technical know-how fees in the assessable value of imported goods under project import heading, considering it a condition of sale as per the supply agreement. The judgments in Essar Gujarat Ltd. and Tata Iron & Steel Co. Ltd. were interpreted to support this decision, leading to the dismissal of the appeal.
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