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TMI Blog2005 (8) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... che Marks failed on merits being not supported by any legal provisions and thereafter it is submitted that the completely new ground which was not even alleged in the Show Cause Notice was made out against the appellant assessee/ importer purporting to hold that the value of the contract no. MD/601 dated 22-8-1990 of 1 MDM under which technical documents imported from Portuguese Government Company, from Siderurgia Nacional (hereinafter referred to as SN for short) by the assessee /importer were to be part of value of 2120 tonnes LD converters other machinery imported. The goods imported by the assessee/importer in agreement being contract no. MD/601 dated 22-8-1990 from SN. The Commissioner has held that the part of the value of the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Hence these appeals. 2. After hearing both sides considering the material it is found - (a) from the show cause notice it is seen that the allegations therein were that market value of the said goods (as new) and referred to in the Chartered Engineers Certificate were to be basis for assessment of the Customs Duty and thereby the value of the goods was to be basis of 42 MDM instead of 12.6 MDM as declared. The consequent undervaluation and evasion of duty would work out to extent of Rs. 30,69,29,961/-. The show cause notice is silent about the modus oprandi of transferring part of the value of the equipment to the value of engineering and technical drawing documents or that the value for such drawings and documents was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder has not taken place. This finding arrived is settled by the decision of the Supreme Court, High Court and CESTAT and the reliance on the following decisions by the appellants is well founded (i) ITC Ltd. v. Commissioner of Central Excise - 2004 (170) E.L.T. 33 (T-LB) = 2004 (63) RLT 350 (LB) wherein the Larger Bench of this Tribunal referred to and relied upon various decisions of the Supreme Court High Court and arrived at the decisions of demands under Section 11A in case of provisional assessment under the Central Excise Act, 1944. The provisions of law being pari materia this decision would be applicable. (ii) Sterlite Optical Technologies Ltd. v. CC, Mumbai - 2003 (55) RLT 721 (T-Mum.) (iii) Finolex Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents had to be and were the same. Contrary to the fertile imagination of the Commissioner there was no motive or oblique purpose in making such change in the nomenclature. The fact that the technical documents had separate existence from the said goods and there was a price therefor (which were reflected in the agreement being MD-601) would also be evident from the letters dated 31st Aug., 1987 of Kawasaki Heavy Industries Ltd., Japan 21st July, 1987 of Voest Alpine AG, Austria and 24th July, 1987 of Mecan Arbed, Luxembourg to SN conveying their respective No objections to SN handling over the subject equipments and materials of which they were the manufacturers and delivering to the buyer thereof the related technical documentatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of technical documents and therefore formed a part of the said 1 MDM. In the absence of any such material, the finding of the Commissioner in the said order is based on mere assumptions and presumptions unsupported by any evidence. The findings are untenable and unsustainable. (d) In page 23 of the order, even according to the Commissioner, allegedly a portion of the value of the goods was transferred to the MD-601 as allegedly documents such as operation manual, documents required for assembling, commissioning and operating the goods, etc. were included in the scope of MD-601 although they formed actually parts of the normal equipments. Therefore, even according to the Commissioner, only a portion of 1 MDM reflected the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars including the purpose for which the said technical documents were required and the value thereof along with copy of the agreement MD601 were submitted by the appellant before the Government of India by its letter dated 5th April, 1991, a copy whereof is included in the paper book. The import of the technical documents and the fee of 1MDM to be paid thereon were approved upon due scrutiny of these materials and documents by the concerned Government of India authorities. In spite of these documents being available on record, it is incomprehensible how the Commissioner could come to the misconceived assumption that the said cost of the technical documentation of 1 MDM represented the fictional value thereof or was a superficial crea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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