2009 (2) TMI 124

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..... sal. 2. The appellants M/s. Faiveley Transport India Limited, formerly known as Sab Wabco (I) Ltd (SWIL) imports 'air dryers and assembly kits' from M/s. Graham White Manufacturing Corporation, USA (Graham White) under a licence Agreement entered into with Graham White. SWIL received technical know-how for manufacture of air dryers, etc., for rail bound vehicles. As per the licence Agreement, Graham White was to be compensated by payment of an initial lump sum payment and periodical payments of royalty. Royalty was mutually agreed at 5% of net ex-factory sale price or the licensed products exclusive of excise duties minus the cost of the standard bought out components and landed cost of imported components. After scrutiny of the relevant d .....

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..... nt in question did not suggest that the impugned payment was related to the imported goods and was a pre-condition for the sale of the goods imported. Therefore, the order of the Commissioner (Appeals) to include the royalty charges in the assessable value was not sustainable. Ld. Counsel for the appellants relied on a judgment of the apex Court in CC v. Ferodo India Pvt. Ltd. [2008 (224) E.L.T. 23 (S.C.)] in support of the claim that in the facts of the case royalty amounts were not includible in the assessable value of the goods imported. We have heard ld. JDR who defends the impugned order. 4. On a careful consideration of the case records and the rival submissions, we find that the impugned order does not disclose the essential facts w .....

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..... re a condition pre-requisite for the supply of imported goods by the foreign supplier. In the circumstances, the impugned order found the royalty charges includible in the assessable value in a vacuum. 5. In the Essar Gujarat Ltd. case (supra), the dismantled sponge iron plant imported could be operated only if the importer also bought the licensed technology owned by the supplier. Consideration for the licence to use the process was found by the apex court to be includible in the value as purchase of licence was a condition for sale of the imported plant. The facts of the instant case are not similar to the one in Essar Gujarat Ltd. case, and the Commissioner wrongly relied on the ratio of that judgment. In the circumstances, we set aside .....

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