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TMI Blog2010 (12) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... atively satisfied by the Revenue so as to claim inclusion of the above fees in the assessable value of the goods under import. - matter remanded back. - C/1445/02 - Final Order No. A/512/2010-WZB/C-II(CSTB) - Dated:- 7-12-2010 - Mr. P.G. Chacko, Mr. S.K. Gaule, JJ. Shri Anil Balani, Advocate, for appellant Shri B.P. Pereira, Authorised Representative (JDR), for respondent Per: P.G. Chacko This appeal filed by the assessee is directed against the appellate Commissioners order wherein the learned Commissioner (Appeals) followed the Honrable Supreme Courts judgment in CC, Ahmedabad vs. Essar Gujarat Ltd. 1996 (88) ELT 609 (SC) to hold that the technical know-how fee and royalty paid by the appellant to their forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain conditions as to how the goods to be manufactured inIndiaby the appellant should be marketed. The agreement inter alia provided thus: PROTEGO will supply to PEPL all types of Flame Arrester Elements as well as supply any other equipment (valves or flame arrester) meant for critical application in assembled or CKD condition on PEPL import licences as may be found necessary for PEPL to put into the local market. (Article 6.4). PROTEGO and PEPL stand for the foreign collaborator and the appellant respectively. 2. The appellant did not include the aforesaid fees in the assessable value of the goods imported by them fromGermany. The Deputy Commissioner of Customs (GVC) loaded the value by 20% as per Rule 4 read with Rule 9 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 (SC); (2) CC, Chennai vs. Toyota Kirloskar Motor P. Ltd. 2007 (213) ELT 4 (SC); (3) CC,New Delhivs. ProdelinIndia(P) Ltd. 2006 (202) ELT 13 (SC); (4) R. Stahl Pvt. Ltd. vs. CC, Chennai 2006 (205) ELT 682 (Tri.-Chennai); (5) CC, Chennai vs. Standard Industrial Oils P. Ltd. 2009 (234) ELT 518 (Tri.-Chennai); (6) Hosur Instruments Pvt. Ltd. vs. CC, Chennai 2009 (235) ELT 492 (Tri.-Chennai); (7) HSI Automotive Ltd. vs. CC, Chennai 2008 (224) ELT 439 (Tri.-Chennai). 4. The learned JDR has argued in support of the appellate Commissioners order. In this connection, he has referred to the facts of the case of Essar Gujarat Ltd. (supra) and has made an endeavour to draw a parallel between that case and the instant case. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the agreement dated 20.9.1990 did not necessarily mean that the appellant should purchase the goods under import, from the foreign collaborator as a condition. It is submitted that, in some of the cases considered by the Honrable Supreme Court, similar agreements were involved and even then the view taken by the apex court went against the Revenue. In this context, the learned counsel has particularly referred to CC, Kolkata vs. J.K. Corporation Ltd. 2007 (208) ELT 485 (SC) as well as to the apex courts judgment in Ferodo India Pvt. Ltd. case (supra). Referring to the facts of these two cases, the learned counsel submits that each of the companies had purchased equipments from the foreign collaborator under the same agreement whereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the authorities held against the assessee on the question of includibility of the above fees in the assessable value of the goods under import. We further note that the provisions of the technical collaboration and know-how transfer agreement dated 20.9.1990 were not meticulously examined by the authorities. Article 6.4 of the agreement, which has been emphatically referred to by the DR, appears to have been overlooked. The learned counsel has argued that this article did not necessarily imply that the import of technical know-how by the appellant from the foreign collaborator was a condition of sale of the goods under import. At the same time, one of the submissions made by the DR is that the appellant imported capital goods and com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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