TaxTMI 
TaxTMI 
2010 (12) TMI 68
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....r Gujarat Ltd. 1996 (88) ELT 609 (SC) to hold that the technical know-how fee and royalty paid by the appellant to their foreign collaborator was liable to be included in the assessable value of the capital goods imported by the appellant as also in the assessable value of the components imported by them from the German company during the material period. Under Technical Collaboration and Know-how Transfer Agreement dated 20.9.1990 entered into with the German company, viz. M/s. Braunschweiger Flammenfilter GmbH (hereinafter referred to as the foreign collaborator), the appellant obtained technical know-how and assistance from the foreign collaborator and paid a fee of DM 50,000/- as a lump sum as consideration for technical know-how ....
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....assessable value of the goods imported by them fromGermany. The Deputy Commissioner of Customs (GVC) loaded the value by 20% as per Rule 4 read with Rule 9 of the Customs Valuation Rules, 1988 and directed that all pending provisional assessments be finalised accordingly. In an appeal filed by the assessee, the learned Commissioner (Appeals) upheld the above loading of the value after holding that the payment of technical know-how fee as lump sum, and technical assistance fee as royalty by the appellant to the foreign collaborator was a condition of sale of the imported goods. The learned Commissioner (Appeals) applied the ratio of the apex courts decision in Essar Gujarat case to the case on hand. In the result, bot....
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....arned JDR has argued in support of the appellate Commissioners order. In this connection, he has referred to the facts of the case of Essar Gujarat Ltd. (supra) and has made an endeavour to draw a parallel between that case and the instant case. The learned JDR has also claimed support from Otto India Pvt. Ltd. vs. CC, Kolkata 2002 (149) ELT 477 (Tri.-Kolkata), which is said to have been affirmed by the Supreme Court which dismissed the civil appeal filed by the assessee vide 2003 (158) ELT A331 (SC). The learned JDR submits that, in the technical collaboration and know-how transfer agreement between the appellant and the foreign collaborator, there was a specific condition (article 6.4) which stipulated that PROTEGO (fore....
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....td. 2007 (208) ELT 485 (SC) as well as to the apex courts judgment in Ferodo India Pvt. Ltd. case (supra). Referring to the facts of these two cases, the learned counsel submits that each of the companies had purchased equipments from the foreign collaborator under the same agreement whereunder licence fee or royalty was paid to the foreign collaborator and even then the Honrable Supreme Court held against the Revenue. In this context, the learned JDR has made an attempt to distinguish the case of J.K. Corporation by pointing out that Rule 9(1)(c) was not examined in that case. In that case, what was considered by the apex court was the applicability of Rule 9(1)(e) of the Customs Valuation Rules, 1988 and, therefore, acco....
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....have been overlooked. The learned counsel has argued that this article did not necessarily imply that the import of technical know-how by the appellant from the foreign collaborator was a condition of sale of the goods under import. At the same time, one of the submissions made by the DR is that the appellant imported capital goods and components to be used in the final product to be manufactured inIndia, only from the German company and not from elsewhere during the entire tenure of the agreement. We are of the view that the original authority should meticulously examine the provisions of the agreement and also consider the conduct of the importer in the context of determining the question whether the fees paid by the app....