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TMI Blog2009 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... are not similar – Order of demand and penalty set-aside. - C/302/2008-MAS - 183/2009 - Dated:- 11-2-2009 - Ms. Jyoti Balasundaram, Vice-President and Shri P. Karthikeyan, Member (T) Smt. Rukmani Menon, Advocate, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - The appellant seeks stay of operation of the order impugned in the captioned appeal. After hearing both sides on the stay application, we find that the appeal itself can be disposed without further hearing. After allowing the stay application, we take up the appeal proper for disposal. 2. The appellants M/s. Faiveley Transport India Limited, formerly known as Sab Wabco (I) Ltd (SWIL) imports 'air dryer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted components, irrespective of the source of procurement including ocean freight, insurance, customs duties etc." As per the agreement, royalty is to be calculated on the added value. 3. The impugned order is challenged on the grounds that the Commissioner (Appeals) ordered that royalty was part of the assessable value without any finding substantiating the same. The impugned order was a non-speaking one. The Commissioner (Appeals) had gone beyond the scope of the appeal. The department had sought to vacate the order of the Additional Commissioner of Customs and to remand the matter for de novo adjudication. The agreement in question did not suggest that the impugned payment was related to the imported goods and was a pre-condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the cost of technical know-how and payment of royalty is includible in the price of the imported goods it the said payment constitutes a condition pre-recjuisite for the supply of the imported goods by foreign supplier. If such condition exists then the payment made towards technical know-how and royalty has to be included in the price of the imported goods. On the other hand, if such payment has no nexus with the pricing of the imported goods, then such payment is not includible in the price of the imported goods. We do not find anything in the licence agreement to justify a finding that payments made towards the technical know-how are a condition pre-requisite for the supply of imported goods by the foreign supplier. In the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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