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TMI Blog2015 (7) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... fied copy of the document, namely, Technology Transfer Agreement (TTA). 2. Mr.P.S.Raman, learned senior counsel for the petitioner submitted that the petitioner is a subsidiary of world-renowned company called M/s Gamesa Corporation having its registered office at Spain in Europe. Its principal business is the manufacture of wind energy generators, setting up of wind farms and offering various such services relating to the business of wind energy. The principal of the petitioner company has diversified into solar energy installations and the primary business of the petitioner company is to promote green energy resources globally. He has also submitted that the principal company has 21 years of experience in the field of wind energy and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... group companies were taken up for investigation on the assumption that both the importers and the foreign supplier are related, hence, the issue required investigation as to its acceptability of the declared invoice price for the purpose of assessment. Accordingly, as per Board's Circular No.11/2001 dated 23.2.2001, a case was registered in the SVB unit and Circular No.352/2009-SVB dated 17.12.2009 was issued for provisional duty assessment with one percent extra duty deposit. In this regard, a reply was called for to the standard questionnaire and the Indian company submitted its reply to the questionnaire along with the following documents by their letter dated 19.1.2010: (i)Memorandum of Association; (ii)Balance sheet for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer, on examination of the documents and statements, has found that the petitioner is related to the foreign suppliers and finally applying Rule 3(3)(a) of the Customs Valuation Rules, 2007, which says where the buyer and seller are related, the transaction value shall be accepted, provided that the examination of circumstances of the sale of the imported goods indicate that the relationship did not influence the price, accordingly, held that no additions to the transaction value are warranted under Rule 10(1)(c) of Customs Valuation Rules, 2007. 4. However, the department has filed appeal against the order-in-original on the ground that no investigation has been carried out examining the circumstances surrounding the sale nor the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration Technologica, S.A. Dated 15.5.2015, submitted that when the Managing Director-Technology in Gamesa Innovation and Technology S.L. was one of the two signatories to the Technical Transfer Agreement dated 1.1.2009 relating to Wind Turbine Model AE 59/800 KW on behalf of the aforesaid company, Gamesa Innovation and Technology, S.L. with Gamesa Wind Turbines Private Limited and has also sworn to an affidavit that the certified copy is to be considered as true copy of the original of the aforesaid agreement, as the original agreement is not traceable despite diligent search, a direction may be given to the appellate authority to reconsider the case of the petitioner on the basis of the certified true copy of the original agreement. 5. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f refund, the petitioner would be given an opportunity of showing cause against the proposed order. Being so, the present case is not an enhancement of penalty or fine or confiscation of goods of greater value or reduction of refund amount, but it is a case of examination of related party transactions, wherein it is explicitly clear that royalty agreed to be impliedly paid by the sister company to the parent company outside India should be part of the assessable value and when all other aspects of the issue has been remanded back to the original authority, no interference is called for. 7. But this Court is unable to agree with the submissions made by the learned standing counsel for the respondents. The reason is that the second responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany, as soon as an agreement is executed, the original is scanned and the scanned copy is archived and the attached copy of the aforesaid agreement initialed by him is print out of the original agreement so scanned and archived. Moreover, he is presently employed as the Managing Director-Technology in Gamesa Corporation Tecnologica, S.A., therefore, when one of the signatories to the Technical Transfer Agreement dated 1.1.2009 relating to Wind Turbine Model AE 59 / 800 KW has filed an affidavit along with the certified true copy of the original agreement dated 1.1.2009, this Court finds no embargo or impediment for the second respondent to consider the same as per Section 63 of the Indian Evidence Act, which says that the certified copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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