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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 ..... not be accepted in terms of Rule 3(3)(a) / 3(3)(b) of the Customs Valuation Rules, 2007. Certified true copy of the Technical Transfer Agreement has been filed before this Court with supporting affidavit sworn to by 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 Gamesa Innovation and Technology, S.L. with Gamesa Wind Turbines Private Limited stating that the original of the Technical Transfer Agreement executed by him as an authorised signatory of Gamesa Innovation and Technology, S.L, Spain is not traceable despite diligent search, however, as per the established internal practice of the company, 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. 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 of the original, accompanied by a sworn affidavit of one of the signatories to the original Technical Transfer Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l energy sources, it is a matter of pride for the company that consistently for the last five years, the petitioner company has been the market leader, as most of the components, equipments and machineries from its parent company as well as from various other sister concerns are being imported. The petitioner company has been strictly adhering to all the provisions of the Customs and other Acts. 3. Adding further, the learned senior counsel submitted that when the petitioner company is a wholly owned subsidiary of M/s Gamesa Technology and Innovations, Spain, they are related in terms of Rule 3(3)(a) of the Customs Valuation Rules, 2007. In this background, the valuation of imports of M/s Gamesa Wind Turbines Private Limited, Chennai from M/s Gamesa Eolica SL, Spain and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner was asked to demonstrate the correctness of the declared value, hence, the order of accepting the invoice price as the true transaction is not correct. Accepting the appeal, the second respondent/appellate authority allowed the appeal setting aside the order-in-original on the sole ground that the agreement copy submitted to the department does not lend any scope to the assessing officer to conclude that royalty has no nexus with the imported goods, more particularly, when it can be seen that factually there is a nexus between the royalty and the imported goods and the existence of conditions of sale conclusions have to be drawn based on that. Besides, when the balance sheet shows the flow back of ₹ 18,11,20,000/- in the year 2010-11 to the related supplier in the name of fees for shared services, the petitioner company has not produced any original agreement in this regard. Although the petitioner company has submitted a copy of service agreement dated 1.4.2010, on their failu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Service Tax Appellate Tribunal (CESTAT), submitted that the second respondent has complied with all the procedures contemplated under Section 128-A of the Customs Act and as per the said section, only in cases where an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of 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 respondent-Commissioner of Customs (Appeals) has already come to a definite conclusion against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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