2000 (8) TMI 747 - AT - Customs

Tribunal allows inclusion of designing charges in assessable value, directs redetermination upon project finalization.

The Tribunal upheld the inclusion of designing and engineering charges in the assessable value, directing the proper officer to redetermine these charges ... Power Generation Project - Exemption Notification - Valuation Issues Involved:1. Determination of the assessable value - inclusion of designing and engineering charges.2. Determination of the rate of duty - applicability of different serial numbers of Notification No. 36/96.Issue-wise Detailed Analysis:1. Determination of the Assessable Value:The primary issue was whether the designing and engineering charges amounting to JY 227,882,000 should be included in the assessable value of the imported goods. The Assistant Commissioner and the Commissioner (Appeals) both upheld that these charges should be included as per Rule 9(1)(b)(iv) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1983. This rule mandates the addition of costs incurred for engineering, development, artwork, and plans undertaken outside India, necessary for the production of the imported goods, to the price actually paid or payable. The appellants argued that these charges were not for design and engineering but for transportation and erection, which should not be included in the assessable value. However, the Tribunal found that the charges were indeed for design and engineering and thus should be included in the assessable value. The Tribunal instructed the proper officer to redetermine the exact quantum of these charges and add them to the value upon finalization of the project import assessment.2. Determination of the Rate of Duty:The second issue involved determining the correct rate of duty applicable to the imported goods. The appellants claimed the benefit under Serial No. 206 (iv) of Notification No. 36/96-Cus., dated 23-7-1996, which provides a concessional rate of duty for power generation projects including gas turbine power projects, excluding captive power plants set up by projects engaged in activities other than power generation. The lower authorities, however, classified the imports under Serial No. 206 (iii), applicable to captive power plants of 5 MW or more, which attracts a higher duty rate. The Tribunal analyzed the nature of the appellant's project and found that it was a collective captive power plant, set up by various industries engaged in activities other than power generation. The Tribunal concluded that the exclusion clause in Serial No. 206 (iv) was applicable, and thus, the imports should be classified under Serial No. 206 (iii), attracting a duty rate of 20% (Basic) + 2% (SCD) + 10% (CVD).Conclusion:The Tribunal upheld the inclusion of designing and engineering charges in the assessable value and instructed the proper officer to redetermine these charges upon finalization of the project import assessment. Regarding the rate of duty, the Tribunal confirmed that the imports should be classified under Serial No. 206 (iii) of Notification No. 36/96, attracting a higher duty rate, as the project was a collective captive power plant set up by industries engaged in activities other than power generation. The appeals were allowed in these terms.