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TMI Blog1998 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... d. have been asked to pay duty amounting to Rs. 4,18,12,425/- and penalty of Rs. one crore. Shri Chand Seth, Chairman-cum-Managing Director has been imposed a penalty of Rs. 50 lakhs and Shri Arun Gupta, Director has been imposed a penalty of Rs. 25 lakhs. 2. Shri V. Sridharan, ld. Advocate submitted that the applicant is engaged in the manufacture of Polyethylene Terephthalate (PET) Chips and for this purpose a factory was set up with Technical Collaboration of M/s. Zimmer AG Germany; that according to the agreement, the applicant had to pay DM 8 lakhs for supply of know-how and DM 26 lakhs for Front End Engineering Package (FEEP); that the Colloborator has sent 112 volumes of know-how and FEEP by courier. Ld. Advocate submits that kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering Co. Ltd. 1974 (96) ITR. 672 in which it was held that a book is not necessary a printed book ..... But in addition, according to the ordinary meaning of the English word book there are many books which are not necessarily the sort of books which one finds in a library at all, and which yet are books. ld. Advocate specifically referred to a paragraph which appeared at page 685 of the ITR which reads as under : The decision referred to above bring into limelight the point that whenever the question has arisen before courts whether a particular article or object was book, the test which was commonly applied was whether it had the physical characteristics of a book. In other words, the test applied was : Is it a collection of sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latest power system are classifiable under sub-heading 4901.99 and not under Heading 49.06 or 49.11 of Customs Tariff Act, 1975. 3. On the question of valuation, he submitted that M/s. Zimmer A.G. Germany their collaborator, in their certificate which has been not dated on 30-9-1997, has given the bifurcation of DM 34 lakhs. According to this certificate the DM 34 lakhs paid by them covers fees for other services such as right to export, production lead time, support to get training of Pearl Personnel, free of cost after sales service etc. His contention was if at all the duty is payable, it should be paid only on the cost of technical know-how and FEEP. His another contention is that the present matter falls under Section 15(1)(C) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation to the design operation and maintenance of the plant. Ld. DR emphathetically mentioned that nowhere the senior officials of the company are referring to FEEP printing books at all. These basic drawings will fall under Heading 49.11 of the Customs Tariff. According to him M/s. Lakshmi Cement case was in respect of design and not drawing and therefore, no benefit can be drawn by the applicants from that decision. The decision in Tractors Farm Equipment Ltd. case is the right decision which has been rightly applied in the present case by the Commissioner. On the question of valuation, he again referred to the statement of CMD in which he had stated that total amount of DM 34 lakhs was to be paid under agreement and out of this DM 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that both Gujarat High Court and Supreme Court in the decisions referred to above were referring drawings and not to any other thing when both High Court and Supreme Court held that these are books under the Income Tax Act. On the question whether a decision under any other Act could be applied to the Central Excise matter, he relied on the decision of 1987 (30) E.L.T. 850 in which it was held that when the expression are similar the observation of the Supreme Court has to be taken into consideration. A reference can be made to the decisions by the Courts under Income Tax and Sales Tax Act etc. 6. We have considered the submissions of both the sides. We observe that the issue involved has to be gone into detail at the time of r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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