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2013 (8) TMI 134 - CESTAT MUMBAIValuation - import of cars in SKD / CKD conditions - inclusion of costs towards transfer of technology and trademark licence - Investigation was taken up on the basis of intelligence assesses had not declared the value correctly and consequently evaded customs duty - the Commissioner ordered that 45 million USD charged as Technology Transfer is attributable to pre-importation activity and, therefore, this amount has to be added and included in the assessable value, applicable to each imported car kit - Agreements between the two companies fraudulent and fabricated - whether the payment of lump sum made to SKODA towards technological fees for manufacturing car kits calculated on the basis of USD per unit as per FIPB application and as per cost sheet recovered during the investigation was includable in the assessable value or not - clauses from (a) to (e) of Rule 9(1) are independent - just because the transaction value under Rule 4(1) is to be adjusted with the costs and services under Rule 9(1), cannot be said that Rule 9 is a residuary Rule - transaction value under Rule 4(1) is to be adjusted with the costs and services mentioned in any of the clauses (a) to (e) of Rule 9(1) depending upon the fact situation of each case. It is needless to mention that each of the clauses from (a) to (e) of Rule 9(1) is independent. Further, just because the transaction value under Rule 4(1) is required to be adjusted with the costs and services under Rule 9(1), it cannot be said that Rule 9 is a residuary Rule. Technical Documentation - the Supply Agreement and the Technology Transfer and Trademark Licence Agreement are complementary to each other - both the Agreements had to be taken as indivisible and composite contract. Lumpsum (Technological Fee) vis-ŕ-vis royalty – royalties will be addable to the value of the imported goods - only the lumpsum amount of USD 45 million paid towards technical documentation (technology transfer fee) which was different from royalty was addable to the assessable value of the goods - State Bank of India V/s. CC, Bombay –(2000 (1) TMI 177 - SUPREME COURT OF INDIA ). Limitation - The show cause notice had demanded duty for the period from October, 2001 to July,2007 by invoking the extended period of limitation u/s28 (1) – There were clear suppression of fact attracting the extended period of limitation – the notice needed to be issued either within the normal period or within the extended period from the relevant date - CCE, Surat-I v/s. Neminath Fabrics Pvt. Ltd. ( 2010 (4) TMI 631 - GUJARAT HIGH COURT) - date of knowledge cannot be imported into the relevant date as prescribed by the Act. Jurisdiction: - the show cause notice had been issued - the officers of the Directorate general of Central Excised Intelligence at various levels were also officers of Customs with all India jurisdiction vide Notification No. 27/2009-Cus - Further, they are also ‘proper officers' for the purposes of Section 28 in terms of Notification No. 44/2011. Confiscation - this was a case of misdeclaration of value of the goods by suppressing the fact of payment of USD 45 million in the guise of technical documentation - the Commissioner had rightly held that the goods are liable to confiscation u/s 111(m) and imposed redemption fine in lieu of confiscation as the goods were not physically available at the time of adjudication. Penalties - the short levy had arisen as a result of suppression of facts of payment of USD 45 million in the guise of technical documentation - the Commissioner had rightly imposed penalty of SAIPL u/d114A – penalties were reduced - the goods were not physically available at the time of adjudication - redemption fine imposed by the Commissioner was not imposable – decided partly in favour of assessee.
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