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TMI Blog2008 (3) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ri M.V. Ravindran, Member (J) and K.K. Agarwal, Member (T) Shri J.C. Patel, Advocate for the Appellant Shri S.N. Prasad SDR for the Respondent. [Order per : Shri M. V. Ravindran, Member (Judicial)] - This appeal is directed against order-in-original No. 445/2001/CAC/CC/MD dt. 21.12.2001. 2. The issue involved in this case is that the appellant herein imported "Patterns, Fixtures, Samples Units and its Accessories" under the invoice No. 401632 dt. 12.12.2000 from Germany. The invoice value was DM30,000/-(C& I) and the clearance was sought under benefit of Notification No.49/2000 dt. 27.4.2000 against EPCG Licence. On investigation, it was noticed by the lower authorities that the appellant had agreed to remit an amount of DM25,000/- as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifold violations of provisions of Customs Act, 1962 read with customs Valuation Rules, 1988; Exim Policy 1997-02 and Foreign Trade (Development and Regulation) Act, 1962 by the importing firm I impose a penalty of Rs.1,00,000/-(Rupees One Lakh only) on M/s. Elmrad Hydro Drive Inc. under Section 112(a) of Customs Act. This order is passed without prejudice to any other action that may be taken against the importer under any law for the time being in force in India". 3. The Ld. Counsel appearing on behalf of the appellant submits that the adjudicating authority has erred in coming to the conclusion that the value of the goods enhanced is incorrect and included value of DM 30,000/- was specifically for the patterns, fixtures etc. It is hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . SDR on the other hand would lay emphasis, that there is a mis-declaration of the value of the goods. It is his submission that the agreement indicate that DM 25,000/- (lump sum fees) will also include the patterns of the type 62 which are essential for the production for the product contract. It is his submission that the patterns, fixtures, samples which were imported by the appellant would infact should be enhanced with the value of this amount as both are required for the manufacturing of the products. He reiterates the findings of the adjudicating authority. 5. We considered the submissions made by both sides and perused the records. This is a second round of litigation. The Ld. Commissioner while setting out the issues which were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum fees is to be paid at once against irrevocable letter of credit at the time of know-how-document exchange (on approval of the contract by the Reserve Bank of India) to ALLGAIER". It can be noticed from the above reproduced article that know-how fee of DM-25,000 includes pattern set type 62 as per the Annexure and it also records that these are essential for the production of the contract products in India. Reading this article it would indicate that the patterns, fixtures and samples which were imported by the appellant by declaring the value of DM-30,000 as lump sum fees are also a part of the know-how fee that was contracted. A plain reading of the above reproduced article in the agreement, would indicate that the patterns, fixtures ..... X X X X Extracts X X X X X X X X Extracts X X X X
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