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TMI Blog2007 (5) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... inment (I) Pvt. Ltd.? 2. The .assessee imported 20-Lane Bowling Alley from M/s. AMF Bowling Inc. based in USA for installation in their premises situated at Phoenix Mills Compound, Lower Parel, Mumbai-400013. On 18-5-1999, a show cause notice was issued in which it was alleged that the assessee had grossly undervalued the said equipment by declaring the price at US $ 15000 CIF as against the normal price of US $ 30000 for a lane. According to the show cause notice, the assessee had disguised part of the cost of the equipment as Technical and Installation Fee which was payable to the subsidiary of the foreign supplier, M/s. AMF Bowling (I) Pvt. Ltd., amounting to Rs. 59 lacs payable over a period of three years. According to the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules") cannot be taken and accordingly, the Adjudicating Authority invoked Rule 5(1)(c) of the Customs Valuation Rules and called upon the assessee to pay duty on the price calculated at the rate of US $ 30000 x 20 + Rs. 1.41 lacs per lane as Installation Charges, which M/s. Capital Leisure Pvt. Ltd. had paid, amounting to Rs. 28.33 lacs. 4. Aggrieved by the aforesaid decision of the Adjudicating Authority, the matter was carried in appeal by the assessee to the Appellate Tribunal. The Tribunal came to the conclusion that in the present case there was no under valuation and, therefore, there was no reason to deviate from the valuation under Rule 4(1). According to the Tribunal, the declared value of the equipments at the rate of US $ 1519 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the judgment of this Court in the case of Basant Industries (supra). Further, there is no merit in the contention advanced on behalf of the Department that the cost of the equipment was deliberately bifurcated and that the Technical and Installation Charges Agreement dated 20-8-1998 was a disguise to arrive at the true value of the import. In this connection we find that, the foreign supplier had its subsidiary in India; that subsidiary was M/s. AMF Bowling (I) Pvt. Ltd.. It is not the case of the Department that the said subsidiary was a bogus company. As stated above, the equipment was supplied by M/s. AMF Bowling Inc., USA which wanted to promote the game in India. As stated above, 20-Lane Bowling Alley was the biggest in Asia. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t find any infirmity in the impugned judgment of the Tribunal One cannot compare the impugned transaction with the transaction which M/s. AMF Bowling Inc., USA had with M/s. Capital Leisure Pvt. Ltd. We find no merit in the argument advanced on behalf of the Department that the Technical and Installation charges was a disguise to cover the true cost of the equipment. There is no evidence of any flow-back or extra-consideration deflating the price and, therefore, there was no reason to include Rs 59 lacs in the assessable value of the equipment In our view, Rule 4(1) of the Customs Valuation Rules was applicable and the Department had erred in invoking Rule 5(1)(c) of the said Rules 6. For the aforestated reasons, we find no infirmity in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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