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TMI Blog2017 (4) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... t inclusion of this amount in the assessment by the original authority. The dispute pertains to the import of second-hand disk forming die set and Canon printer by M/s Kalyani Lemmerz Ltd vide bill of entry no. 185/2.4. 2001. The original authority had enhanced the value of the die and Canon printer besides including the fees paid by the importer to M/s Hayes Lemmerz GmbH, Germany in accordance with 'engineering service agreement' dated 17th June 1992. The importer had, in appeal before first appellate authority, challenged only the inclusion of the fees. 2. The first appellate authority found that the said fees were payments on account of setting up of a plant in India for manufacture of 'truck wheels' and was purportedly consideration for project engineering, product engineering and training. As these were not found to be related to the importation of goods and was not a license fee, the impugned order did not concur with the findings of the original authority on this inclusion. 3. Revenue contends that this engineering service agreement is not limited only to plant layout and capacity study, machine design and selection, product and tooling design as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plant, all of which are post-importation of the plant into India. 10. In fact, clause 13 of the purchase order dated 21-6-1991 is important in that liquidated damages are only payable for delay in commissioning the plant and for failure to achieve the stipulated performance, both of which are post-importation activities. 11. Another thing to be noticed is that a conjoint reading of the technical services agreement and the purchase order do not lead to the conclusion that the technical services agreement is in any way a pre-condition for the sale of the plant itself. On the contrary, as has been pointed out above, the technical services agreement read as a whole is really only to successfully set up, commission and operate the plant after it has been imported into India. It is clear, therefore, that clause 9(1)(e) would not be attracted on the facts of this case and consequently the consideration for the technical services to be provided by Met Chem Canada Inc., cannot be added to the value of the equipment imported to set up the plant in India. 6. Distinguishing the decision of the Hon ble Supreme Court relied upon by the reviewing authority, their Lordships held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as the plant had been sold abroad on an as is where is basis and needed to be dismantled abroad before it was ready for delivery in India. Obviously, therefore, this 10% is attributable to a pre-import stage. Further, the amount of 22 Lakh Deutsche Marks payable for theoretical and practical training of personnel outside India again could not be added as this amount would presumably be attributable to trained personnel who would be used in the commissioning and operation of the plant, which would, therefore, be attributable to a post-importation event. Thus, properly read, the judgment in Essar Gujarat's case actually supports the respondent in that the payment for engineering and technical consultancy services in India cannot be added to the value of the imported plant. Also, in the present case, there is no transfer of technology under a license. Therefore, no question arises as to whether without such license the plant to be set up in India could be operated at all. The judgment also concludes in favour of the respondent the fact that all amounts payable for training of personnel outside India cannot be added to the value of the plant. 14. In Tata Iron Steel Co. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods are not part of the Customs value. Rule 9(1)(e) was not attracted on facts. This Court held : 15. Clause (e) of sub-rule (1) of Rule 9 is attracted when the following conditions are satisfied : (i) there is a payment actually made or to be made as a condition of sale of the imported goods by the buyer to the seller or to a third party; (ii) such payment, if made to a third party, has been made or has to be made to satisfy an obligation of the seller, and (iii) such payments are not included in the price actually paid or payable. 16. It is nobody 's case that the seller had an obligation towards a third party which was required to be satisfied by it and the buyer (i.e. the appellant) had made any payment to the seller or to a third party in order to satisfy such an obligation. The price paid by the appellant for drawings and technical documents forming the subject-matter of contract MD 301 can by no stretch of imagination fall within the meaning of an obligation of the seller to a third party. There was also no payment made as a condition of sale of imported goods as such. Rule 9(1)(e) also, therefore, has no applicability. 17. So f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity. The Tribunal has also stated that it was not recording any finding of skewed split-up . Shri Ashok Desai, the learned Senior Counsel for the appellant has pointed out that under Chapter Heading 49.06 of the Customs Tariff Act, 1975 plans and drawings for engineering and industrial purposes being originals drawn by hand as also their photographic reproductions on sensitised papers and carbon copies thereof are declared free from payment of Customs duty. Sub-rules (3) and (4) of Rule 9 clearly provide that additions to the price actually paid or payable are permissible under the Rules if based on objective and quantifiable data and no addition except as provided for by Rule 9 is permissible. 7. The said decision also examined the context of various previous rulings of the Hon ble Supreme Court cited by both sides before arriving at the conc ..... 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