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TMI Blog2015 (2) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... venue alleges that an intelligence was received by the Directorate of Revenue Intelligence, which indicated that the Respondents were engaged in the import of recorded media containing foreign feature films, for which they had paid huge amounts to the overseas suppliers towards licensing rights to exploit the said films for a certain period or limited duration. It was also indicated that the said payment details had not been declared to the Customs Authorities at the time of Customs clearance of such feature films. 4) The issue of Customs valuation of the recorded media, on the basis of the value of its contents, in view of the existing legal provisions vis -a- vis the ever evolving technology for visual media, is explained briefly in the memo of the present Appeal and it has been urged that the statement of the Managing Director of the Assessee , which was recorded, reveals that the agreements with overseas entities have been scrutinised and upon such scrutiny, the material form, through which the said films and serials were to be delivered, was Beta or Digibeta tapes, which shows that payment of such licence fee was a condition for delivery/sale of the recorded media. The Managi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judgments of the Hon'ble Supreme Court in the case of Associated Cement Companies Ltd. vs. Commissioner of Customs reported in 2001 (128) ELT 21, State Bank of India vs. Collector of Customs reported in 2000 (115) ELT 597 and Indo Overseas Films vs. Commissioner of Customs, Chennai reported in 2002 (139) ELT 729 , which are in favour of the Revenue. Thus, the Assessee has, despite clear legal position, not paid the duty in terms of the legal provisions. This is nothing but a willful suppression and with a view to evade payment of duty in law. Therefore, the extended period was rightly interfered with by the Revenue . The Tribunal's finding is thus perverse. 7) On the other hand, Mr. Prakash Shah appearing for the Respondents/ Assessee would submit that the ingredients of the relevant statutory provisions have not been satisfied. The Tribunal has clearly referred to those ingredients. He has invited our attention to subsection (4) of section 28 to submit that if there is any willful misstatement or suppression of facts by the importer or exporter or the agent or supplier, then, alone the extended period of 5 years could have been invoked and by provisions then applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Beta/ Digibeta tapes were sublicenced by the Assessees to various companies. Rule 9(1)(c) of the Customs Valuation Rules, 1988 and Rule 10(1)(c) of Customs Valuation Rules, 2007 are referred to by the Tribunal's Technical Member in para 2.2 of his order and it is then held that the show cause notice was issued for inclusion of royalties/ licence fee to the overseas suppliers in respect of the goods imported and redetermination of the assessable values of consequential demand of differential duty liable to be paid under section 28(1) of the Customs Act, 1962 read with proviso thereto along with interest on such duty under section 28AB . That is how the case was adjudicated and the order in original proceeded. 10) The Technical Member arrived at a conclusion that the royalties and licence fees paid by the Assessee for import of Beta/ Digibeta tapes containing films ought to be included in the assessable value of the said tapes. Consequently, the demand of differential duty along with applicable interest were upheld. 11) There was a difference of opinion on the point as to whether the extended period of 5 years can be applied in confirming the demand. The difference of opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of fact and law. In the present case, the facts being undisputed, the Tribunal found that prior to the decision of the Hon'ble Supreme Court, which came on 17th August, 2011, there were certain decisions of the Tribunal. It may be that the Tribunal has not referred to all the decisions, but nonetheless in the order passed by the third Member, there is a reference to the Judgment of the Hon'ble Supreme Court in the case of Associated Cement Companies Ltd. (supra). These were the views against the Revenue. The legal position, therefore, was not clear, but somewhat in doubt. It is in these circumstances that the Tribunal concurrently held that the demand in the present case is time barred. The demand was, therefore, set aside. 14) We do not see how a decision of this nature can be faulted. In the case of Continental Foundation Joint Venture vs. Commissioner of Central Excise, Chandigarh-I reported in 2007 (216) ELT 177, the Hon'ble Supreme Court had an occasion to consider this aspect in somewhat similar wording and phraseology. There, M/s. Nathpa Jhakri Power Corporation ( NJPC ) was a joint venture between the Government of India and the Government of Himachal Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act." 16) In the light of the above principles and which we can safely apply to the present case, we do not term the Tribunal's view as perverse. The Tribunal may not have referred to all the decisions, the Assessee also has been faulted in this case for not abiding by the provisions of law in the teeth of some clear judicial pronouncements, however, the question was, when the consignment or goods were imported, was the Assessee guilty of not complying with the provisions of law and willfully. That there we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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