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TMI Blog2014 (6) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... designs so as to establish any nexus with the imported product, if need be, with the assistance of technical experts needs to be undertaken. If these exercises reveal any linkage with the imported goods, then the quantum of payment attributable to the imported goods have to be determined. From the orders passed by the lower authorities, no such study seems to have been undertaken nor the appellant has led any evidence to prove that the payments made has no nexus with the imported goods, except for a bald statement to that effect - Matter remanded back - Decided in favour of assessee for remand purposes. - C/883/2012-Mum. - Final Order No. A/372/2013-WZB/C-I(CSTB) - Dated:- 4-1-2013 - Shri P.R. Chandrasekharan, Member (T) and Anil Choudhary, Member (J) Shri T. Vishwanathan, Advocate, for the Appellant. Shri Amand Shah, Addl. Commissioner (AR), for the Respondent. ORDER The appeal and stay application are directed against Order-in-appeal No. 327/MCH/AC/SVB/2012, dated 19-6-2012 passed by the Commissioner of Customs (Appeals), New Custom House, Mumbai. 2. The appellant, M/s. Suzlon Energy Ltd. (SEZ in short) imports goods such as Electronic Panels from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d designs imported by them for which no bill of entry had been filed. Aggrieved of the said order, the appellant preferred appeal before the lower appellate authority who dismissed the appeal. Hence the appellant is before us. 4. The ld. Counsel for the appellant made the following submissions :- i. The order-in-review was passed in violation of principles of natural justice inasmuch as the department did not issue any show cause notice proposing to include certain amounts to the value of the imported goods under Rule 10 of CVR, 2007; ii. Inclusion of R D fees in the value of the imported goods under rule 10(1)(b)(iv) is not justified for the reason that the payment has been made for the technical assistance rendered by the supplier and not towards any R D services, though in the balance sheet the said payments have been grouped under head R D and the technical assistance fee so paid has nothing to do with the imported goods and is not related to the said goods. iii. The finding that technical assistance or R D were rendered in the form of engineering, designs, drawings and/or plans is not based on any material. iv. The drawings and designs are exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion; (iii) the cost of packing whether for labour or materials; (b) The value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of imported goods, to the extent that such value has not been included in the price actually paid or payable, namely :- (i) materials, components, parts and similar items incorporated in the imported goods; (ii) tools, dies, moulds and similar items used in the production of the imported goods; (iii) materials consumed in the production of the imported goods; (iv) engineering, development, art work, design work, and plans and sketches undertaken elsewhere than in India and necessary for the production of the imported goods; (c) royalties and licence fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of the sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable; (d) The value of any part of the proceeds of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to SEL the right to file for or own without restriction, patents, trademarks, tradenames and copyrights with respect thereto for the territory of India. SEL shall then have the exclusive right to obtain, and hold in their names, copyright, patent or other appropriate registration of Product(s) for the territory of India. This applies only if the assign of rights does not violate German Law, especially the German Invention Law, i.e. Erfindergesetz . 4. SEL agrees to purchase Product(s) from SEG based on agreed terms and conditions. 8.1 As per clause 1.10 of the agreement, Product(s) includes : 1.10.1 design and development of all models of rated capacity geared WTGs together with all related and pertinent component thereof and therein required; 1.10.2 design and development of Suzlon Flexislip system together with all related and pertinent components thereof and therein required; 1.10.3 all and any Product(s) that is developed by SEG conceived (whether or not actually conceived during regular business hours), discovered, or made by SEG and its agents and employees during the course of performing its obligations under the Agreement; 1.10.4 documentation incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TGs, including import of electronic panel from the foreign supplier, SEG, would come within the scope of the above agreement. Therefore, any payment made to SEG in respect of and attributable to the import of electronic panels under the agreement would attract the provisions of Rule 10(1)(b) and such payments will have to be added to the invoice price to arrive at the taxable value of the imported electronic panels. 8.4 There was also another agreement dated 1-4-2006 between the two parties for providing necessary technical consultancy by SEG so as to ensure optimum machine performance of the WTGs manufactured and installed by SEL at various sites of its customers. The consideration for the Technical Consultancy fees was to be decided on the basis of the hours spent by SEG per project and fees were to be paid by SEL to SEG against valid invoices as may be raised by SEG from time to time and further subject to necessary approval of Reserve Bank of India/Govt. of India, which was modified by a supplemental agreement dated 1-4-2008. 8.5 It is the contention of the appellant that the payments made under the head R D fees were in fact payments towards technical consultancy. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Thus both the department and the appellant have failed in their tasks. Therefore, the matter has to go back to the original adjudicating/assessing authority to consider the matter afresh in the light of documentary evidences discussed above. Accordingly the impugned order is set aside and the matter is remitted back to the original adjudicating authority for consideration afresh. The appellant is directed to furnish to the department all documents pertaining to the payments, such as invoices raised by the foreign supplier as well as other documents relating to the supply, RBI/Govt. of India permissions indicating the purpose of payments, copies of the drawings/designs imported. On submission of these documents and any other document the assessing authority might require, the matter shall be examined carefully and the additions, if any, to be made to the invoice price of the imported goods shall be determined on the basis of objective and quantifiable data as provided in Rule 10(3) of CVR, 2007. Needless to say the appellant should be given a reasonable opportunity to make their submissions and thereafter, a speaking order shall be passed in accordance with law. All issues are kep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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