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TMI Blog2009 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... case intended to import a Bag-O-Matic Press for manufacturing tyres. Such machine was not available at the relevant point of time in India and could be imported from Russia. But the petitioner did not have the import licence. Accordingly, the petitioner enquired of the respondent no.5 by its letter dated 18th March, 1989 as to whether the latter would be in a position to arrange an additional licence for Rs. 35 lacs which would include Rs. 34 lakhs on account of cost, insurance and freight and Rs. 1 lac on account of stevedering charges. Respondent no. 5 replied by its letter dated 2nd November, 1989 stating that they could arrange for additional licence but the premium would be 35% of the licence value and requested the petitioner to confirm its acceptance. The petitioner did accept the offer by its letter dated 17th November, 1989. Based on this offer and acceptance the principal of the respondent no. 5 namely the respondent no. 6 obtained an additional licence dated 13th March, 1990 for importing Bag-O-Matic Press on the following condition: "The item of capital goods imported against this licence would be disposed of to an actual user." The amount of service charge @35% wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28th October, 1992 the following ad-interim order was passed: "Finding a prima facie case, there will be an interim order of injunction restraining the respondents from giving effect and/or further effect to the impugned order dated October 15, 1992 as stated in the writ petition and also restraining the Port Trust authorities from taking any further step to realise the demurrage charges, on condition that the petitioners will pay a sum of Rs. 29 lacs in cash to the Customs authorities without prejudice and furnish a bank guarantee for the sum of Rs. 9,20,00/- in favour of the Collector of Customs and also 50% of the demurrage charges payable to the Port Trust authorities in cash and furnish a bank guarantee for the balance 50% of the demurrage charges in favour of the Chairman, Calcutta Port Trust, within a period of one week from date. In default, this interim order of injunction will stand vacated. It is made clear that the above two bank guarantees will be renowed by the petitioners incorporating all the standard clauses. Such renewal of the bank guarantee should be made within a period of 15 days before their respective dates of expiry. It is also made clear that upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that he has not been properly instructed in the matter and he left the matter to the Court. Mr. Majumdar learned counsel appearing for the Port Trust submitted that the bank guarantee which was furnished pursuant to the order dated 28th October, 1992 was not kept renewed from time to tome and accordingly the Port Trust was entitled to recover the proceeds thereof and had in fact done so. It was further submitted that some amount is lying with the Port Trust in excess of its lawful dues which the Port Trust authority is willing to refund to the petitioner. After hearing the learned counsel for the parties, this court is of the view that in ascertaining the transaction value, the Court has to look at the substance of the matter. It cannot be disputed that the sum of Rs. 12.25 lakhs was paid by the petitioner to the respondent no. 5 who is, in fact, an agent of the respondent no.6, the importer, by way of service charge and/or on account of licence premium. Whether the sum was paid on account of service charge or on account of licence premium, the fact remains that such payment was made in order to require and/or purchase the machine in question. On the top of that, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as a part of the price of the goods itself, and secondly that the Indian buyer came into the picture only after the goods had been imported by MMTC or at any rate when the goods were already on high seas. This distinction, sought to be made by the learned counsel, has not impressed me. In the case before the Apex Court, the goods were imported by the Indian buyer through the State undertaking namely MMTC and MMTC realised service charges which were indicated in the invoice raised by MMTC itself. In the present case, the service charges or the licence premium was realised by the respondent no. 5, the agent of the respondent no.6, immediately after obtaining the licence. The present case, in my view, is stronger than that which was before the Apex Court. In the case before the Apex Court, only at the time of purchasing the goods the service charges were paid. In the present case, in the hope that the petitioner will be able to purchase the goods, the petitioner had to pay the sum of Rs. 12.25 lakhs. There is, thus, no real distinction between the case decided by the Apex Court and the case before me. For the aforesaid reasons, the petition fails and is dismissed. All interim or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of the imported goods; (iv) engineering, development, art work, design work, and plans and sketches undertaken elsewhere than in India and necessary for the production of the imported goods; (c) royalties and licence fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of the sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable; (d) the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues, directly or indirectly, to the seller; (e) all other payments actually made or to be made a condition of sale of the imported goods, by the buyer to the seller, or by the buyer to a third party to satisfy an obligation on the seller, to the extent that such payments are not included in the price actually paid or payable. (2) For the purposes of sub-section (1) and sub-section (1-A) of Sec. 14 of the Customs Act, 1962 (52 of 1962), and these rules, the value of the imported goods shall be the value of such goods, for delivery at the time and place of importation and shall include- (a) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional license to import the said machine. Dr. Pal relied upon the following judgments for consideration of the issue, namely, Delhi Stock Exchange Association Ltd. vs. Commissioner of Income-Tax, Delhi. , reported in 41 I.T.R. 495 (SC), Fort Properties Pvt. Ltd. vs. Commissioner of Income-Tax, reported in 208 I.T.R. 232 (Bom), Commissioner of Income-Tax, Gujarat II vs. B.M. Kharwar, reported in 72 I.T.R. 603 (SC), Commissioner of Customs vs. Ferodo India (P) Ltd., reported in (2008) 4 SCC 563 and Hyderabad Industries Ltd. vs. Union of India, reported in 115 E.L.T. 593 (SC). The appeal has been opposed by the learned advocate for respondent, Ms. Bhattacharya, by contending, inter alia, that to identify the liability to pay under the said Rule 9, the pay requisites for importation and nexus with such importation, any sum as paid required to be considered to identify the transaction value. It has been further contended that the appellant-company itself included the said transaction value in its books and accounts and in the bill of entry, which has been shown as Commission. The relevant document is annexed in the paper book. Learned trial Judge considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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