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TMI Blog2021 (1) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals). On the basis of these facts, he has concluded that there is a practice of quoting a higher price and offering discounts to arrive at the final price in the industry - Though the department contends that the discount offered is on the higher side, there is no evidence adduced by them to support their contention. For this reason, there are no grounds to deviate from the view taken by the Commissioner (Appeals) on this issue. The impugned order requires to be set aside with regard to the loading of manuals, software, installation and commissioning charges to the invoice value - Commissioner (Appeals) in setting aside the rejection of discount and loading of 46.89% to the invoice value is legal and proper - Appeal dismissed - decided against Revenue. - C/40249-40250/2014 - Final Order Nos. 40718-40719/2021 - Dated:- 13-1-2021 - Ms. Sulekha Beevi C.S., Member (J) and Shri P. Anjani Kumar, Member (T) Shri R. Parthasarathy, Advocate, for the Assessee. Shri Vikas Jhajharia, AC (AR), for the Department. ORDER The parties herein are referred to as assessee and department for the sake of brevity. 2. The assessee is engaged in the manufacture of steam tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enclosed at page 117 of the appeal paper book. This purchase order for Turn Miller Machine clearly provides for supply portion and service portion separately. The purchase order of Turn Miller Machine was for optional items which are in the nature of manuals, software, installation and commissioning, supervisors and their lodging expenses in India and airfares, travelling expenses in India for commuting from lodging place to work site, training for operating and maintenance at the purchaser s plant in five days. Further, the initial quotation made by the supplier provides separately for the supervision which would show the same amount. Thus, these charges were shown as a separate head in the quotation and clearly distinguishable from the price payable for the goods. Since these charges were for the services of the installation and commissioning of the capital goods that were imported and being undoubtedly post-importation activity, charges were not included in the invoice value. These services have no relation with the price of importation. Moreover, for the said services of installation and commissioning, the assessee has paid service tax under the head Erection, Commissioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Ahmedabad v. Essar Steel Ltd. - 2015 (319) E.L.T. 202 (S.C.) and Commissioner of Customs, Mumbai v. Hindalco Industries Ltd. - 2015 (320) E.L.T. 42 (S.C.) to argue that very same issue was considered by the Hon ble Supreme Court in these cases and it was held that such charges being incurred for post-importation activity cannot be loaded into the invoice value. 8. With regard to the issue under consideration in the appeal filed by the department, Ld. Counsel submitted that the Commissioner (Appeals) has rightly set aside the rejection of the discount given by the supplier to the assessee and loading of invoice value. He once again pointed to the quotation given by the foreign supplier and submitted that the discount was incorporated at the time of quotation itself. It is usual practice in the industry to offer such discounts. Though the original authority held that discount is abnormal, there is no evidence to support in the form of contemporaneous imports. To substantiate his argument, he relied upon the decision of the Hon ble Supreme Court in the case of Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai - 2000 (122) E.L.T. 321 (S.C.). 9. The Ld. AR Shri Vikas Jhaj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in page 146, it is seen that they have paid service tax for the very same activity. For this reason also, the charges are in the nature of post-importation activity. This issue has been discussed by the Hon ble Supreme Court in the case of Hindalco Industries Ltd. (supra). The relevant portion is as under :- 5. On going through the order of the CESTAT, it becomes clear that the CESTAT has gone into the various provisions of the three agreements and has come to the conclusion that neither the fees paid under the Licence Agreement nor under the Basic Engineering, Training and Technical Services Agreement related to the import of the capital goods nor was it a condition of sale and on that basis it has recorded the finding that the provisions of Rule 9(1)(b)(iv) or Rule 9(1)(c) or Rule 9(1)(e) of the aforesaid Rules would apply to the facts of the case. 6. That apart, it further finds that both the Agreements, viz., Licence Agreement as well as Basic Engineering, Training and Technical Services Agreement, pertained to the services that were to be provided post import of the aforesaid goods. On this ground also, the value of these services could not have been loaded into the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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