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TMI Blog2017 (7) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... de Order-in-Appeal No.530/2001, dated 31.08.2001, with the Commissioner (Appeals) holding that the loading of 20% will not survive as no reason is available for the addition and further, M/s. Hanil E. HWA & Co., Ltd., Korea have been procuring and supplying goods to the appellant and the price charged by M/s. Hanil E. HWA & Co. Ltd., Korea was more than direct imports of the said goods from the manufacturer M/s. Hyundai Ltd., Korea. There was no appeal, filed by the Department against Order-in-Appeal No.530/2001, dated 31.08.2001. On the other hand, it had been accepted by competent authority on 08.12.2001. 5. Subsequently, three years after the import, the Special Valuation Branch took up the matter for review, which culminated in issue of review Order-in-Original dated 30-03-2006, wherein it was inter alia ordered as follows:- i) The transaction value of the imports made from the related suppliers M/s. Hanil E. HWA Co. Ltd., Korea shall continue to be accepted under Rule 4(3)(a) of Customs Valuation Rules, 1988. ii) The lump sum fee of Rs. 84,80,744/- towards technical know-how shall be loaded to the assessable value of the goods imported prior to Order-in-Original in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) In the matter of addition of Rs. 4,59,67,972/-, while this amount has been paid to M/s. Hanil E. HWA & Co. Ltd., Korea the imports from the said supplier are not their manufactured products. In the circumstances, notwithstanding the fact that appellant and Hanil E. HWA & Co. Ltd., Korea are related, there could be no addition to the transaction price inasmuch as the transaction price is on the higher side when compared with imports of the same item into India from manufacturer, of the said item. (viii) Further, the review Order-in-Original dated 30.03.2006 has not finalized value for the review period for three years from April, 2004 and has only directed that there shall be provisional payment of 1% EDD till further orders. 9. On the other hand, on behalf of Revenue, Ld. AR supports the impugned order and opposed the appeal. The main contentions of the Ld. AR can be summarized as follows:- (i) The fact of payment of Technical Know-how fees etc., was noticed only from the Annual Report of 2000 which had been obtained along with other documents for the purpose of review of the SVB order of 2001 for loading of invoice value under Rule 8 of Customs Valuation Rules, 1988; (ii) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred that they have not entered into any Technical Collaboration Agreement and Technical Assistance Agreement for Trademark as per joint venture. In the personal hearing, conducted on 14.02.2001, the appellants had averred that there are no payment of Royalty/Technical Licence Fee to the supplier and that although, joint venture agreement says Technical Collaboration Agreement, they have not entered into any such agreement with their joint venture partners. Based on this information made available to him, the original authority passed an Order dated 26.02.2007, wherein, he inter alia, held that the appellant, and their suppliers M/s. Hanil E. HWA & Co. Ltd., are related, and that invoice price shall be loaded by 20% for the purpose of assessment. In page 4 of the order, the adjudicating authority takes note of the fact that the appellant had not submitted a number of documents, including SIA Technical Assistance Agreement/Licence Agreement (Trademark) etc. In Sl.No.4 of the order portion on page 6 of the order, the adjudicating authority categorically indicates that the decision taken by him has been done only on the basis of importer s statement, information and declaration made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights rendering of Technical and Administrative Assistance, by Hanil E. HWA to Hanil Lear India Ltd., from October, 2001 onwards. 10.8 Distinguishably, the facts of such agreements, or, for the matter, the facts of these payments made to M/s. Lear Corporation, USA and to M/s. Hanil E. HWA Co. Ltd., Korea by the appellant, had not been disclosed and consequently not analysed, during the initial SVB investigation in 2001. There can then be no doubt that such a vital information of this nature has been suppressed from the investigating SVB. Such suppression cannot be attributed to inadvertence or negligence and has certainly been done for the purpose of avoiding proper enhancement of assessable value and thereby evading discharge of the correct Customs duty to the exchequer. 10.9 Viewed in this light, we are unable to find any infirmity with the findings and conclusions of the lower appellate authority in the impugned order, in particular, the following portions:- " 14. It was therefore readily apparent that the appellants had willfully suppressed the payment of technical know how fee to M/s. Lear Corporation in March 2000 and the payment made to M/s. Hanil E Hwa in the years 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially when payments have been made to the joint venture partners engaged in the same fields of expertise) on the part of the appellants to reveal such payments made abroad as there is every likelihood of such payments influencing the actual value of the goods. When an order had been issued to the effect that the appellants should make known any payments abroad or inform the department of any change in the invoicing patterns, the appellants should have definitely informed the department when the appellants made the payments to M/s.Hanil E Hwa so that the said value could be apportioned and loaded on to the value of their previous / future imports. The payments of Rs. 84.80 lakhs to M/s.Lear Corporation, USA was definitely suppressed because they were not revealed to the original authority in March 2001 although the said payment was made in the year 2000 itself. Thus this payment made abroad would be addable suitably apportioned to the value of the goods imported during the year 2000. 16. Similarly, in respect of the Rs. 4,59,67,972/- sought to be loaded by the department, it is seen that although a sum of Rs. 7,77,20,729/- had been paid abroad, the order has only taken into accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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