TMI Blog1997 (5) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... m to include the same. This amount was then entered in the box captioned Loading/Local Agency Commission. The payment of duty was made on two days, 20-1-1988 and 27-1-1988, the latter payment being for the duty referable to the sum of US $ 7,463 which was made under protest. The appellant filed a refund claim for the duty paid on such added value on the ground that such added value was Technical Handling Charges paid to the local agent of the suppliers for installation, servicing and training which should not have been included in the assessable value. The refund claim was for Rs. 38,469. The appellants also made an additional claim stating that as per the revised agreement they had to pay only a sum of US $ 6,866 towards installation, serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 149 of Customs Act, 1962. On such a reasoning the Collector (Appeals) rejected the appeal. Hence the present appeal. 2. Heard both sides and perused the record. We find that the impugned order in appeal has been assailed, inter alia, on the ground that the Collector (Appeals) had erred in holding that there was no evidence to substantiate the appellants claim that installation charges were wrongly shown as charges for loading/unloading Agency Commission charges. The question that the amount in question was for loading/unloading and agency commission was not an issue before either the Assistant Collector or before the Collector (Appeals) and that the Collector had gone beyond the order of the Assistant Collector and travelled beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants of limiting the disputed value to US $ 6,866 instead of US $ 7,463, both the lower authorities held that the claim was not permissible in view of Section 149 of the Customs Act. We find that in the copy of the Bill of Entry produced, while all the entries made by the appellants or their Custom House Agents on their behalf have been typed, the figure US $ 7,463 has been written by hand in the box having the heading Loading/Local Agency Commission. Obviously this entry had not been made by the appellants suo motu as they had initially not declared this amount and they had also paid the duty on the said inserted value under protest. In the copy of Invoice dated 14-12-1987 issued by the suppliers, General Electric for the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yptic and there is no indication whether the claim that the amount represented installation charges was correct and that the finding that installation charges are includible in the assessable value had been reached after being satisfied that the amount in fact represented installation charges only and was not local agency commission. The question whether it was the appellant who had declared it in the Bill of Entry as local agency commission or it was the departmental officer who had made such an entry while completing the assessment in the Bill of Entry. The documents on the basis of which the said entry has been made do not appear to have been filed in the appeal papers. The invoice of the foreign supplier is dated 14-12-1987 while the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no option available to the customer and even if he did not want the service he still had to pay the full composite price inclusive of the service element then the composite price should form the basis of assessment. In a recently reported judgment in Collector of Customs (Prev.) Ahmedabad v. Essar Gujarat Ltd. 1996 (88) E.L.T. 609 Supreme Court had, while holding that process licence fees and certain technical service fees payable under the contract entered into by Essar with the suppliers were includible in the assessable value of the second hand sponge iron making plant, held that the payment for training cannot be added to the value of the plant. The present matter requires to be looked into afresh following the ratio of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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