9911796707
TMI Blog2003 (9) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Hiltek Materials Ltd., U.K. (M/s. HML in short) for (i) transfer of technology and know-how required for manufacturing microwave ferrite and dielectric materials and (ii) also for technical and project management services towards setting up and commissioning of the Advanced Materials Laboratory (AML) and a pilot plant for the same purpose; that they were required to pay a total lump sum fee of GBP Rs.1,90,000.00 in three instalments. He further mentioned that for the purpose of setting up of AML and the pilot plant they placed two orders with M/s. HML on 26-8-97 for supply of certain machines (Microniser) and test equipments together with drawings and designs; that the remaining machinery and equipments required for the project were impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn collaborator was not fettered by any condition, including condition of payment of the technical know-how fee; that in fact nowhere in the Agreement is there any clause for importation of any particular machine or equipment from the collaborator whose services in this respect were confined only to listing of equipment with their specifications and suppliers' name and offer of specialised equipments for the appellants' consideration; that thus there was no compulsion on the appellants for purchase of any equipment from the collaborator ; that Rule 9(1)(e) of the Customs Valuation Rules authorises addition to the invoice value "all other payments actually made or to be made as a condition of sale of the imported goods"; that thus it is appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not required to be loaded to the value of imported machinery covered by a separate contract. 4. Finally he submitted that the appellants had offered to add 5% of GBP 68,400 only to avoid further litigation on the matter; that the original adjudicating authority had not relied upon the said proposal for loading the invoice value; that the finding of the Commissioner (Appeals) that "the appellants' voluntary proposal for 'some' addition, tacitly and indirectly vindicates the stand taken by the Revenue" is based on conjecture only since nowhere in their correspondence did they admit that payment of the technical know-how fee was a condition of sale of the impugned goods; that in any case there is no bar under the law to the review of a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the imported goods, by buyer to the seller or the sale of the goods. Before the fee paid by the importer to M/s. HLM for transfer of technology and know-how and for technical and project management services towards setting up and commissioning of the plant can be added to the assessable value of the impugned goods imported by them, it has to be proved by the Revenue that the said fee paid by the appellants was a condition of the sale of the impugned goods. Nothing has been brought on record by the Revenue to show that the technical know-how fee paid by the appellants was a condition of the supplier for the supply of the goods imported by them from M/s. HLM, their collaborator. As per the agreement entered into between the appellants and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has been made as a condition of sale of the imported goods. The similar views have been expressed recently by the Larger Bench of this Tribunal in the case of M/s. Polar Marmo Agglomerates Ltd. v. CC, New Delhi - 2003 (155) E.L.T. 283 (T - LB) = 2003 (56) RLT 967 (CEGAT - LB). The Tribunal in the said matter did not find any Clause which made the transfer of licence and know-how as a condition for the purchase of the plant and machinery for making it functional. The Tribunal observed that "know-how licence is one relating to Developing agglomerated stones" and held that the fee for transfer of know-how licence and also for assembling and start up of the plant is not to be added in the assessable value of the imported plant and machinery. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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