TMI Blog2018 (4) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said royalty/licence fee may include consideration for reproduction or distribution rights. Extended period of limitation - suppression of facts - Held that: - reliance placed in the case of M/s Continental Foundation Joint Venture Sholding, Nathpa HP Versus Commissioner of Central Excise, Chandigarh-I [2007 (8) TMI 11 - SUPREME COURT OF INDIA], Where it was held that when the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact - extended period not invocable. Confiscation - redemption fine - Held that: - The goods having been cleared in the normal course, the proceedings for recovery and confiscation were initiated much later. The imports were effected without any bond that could cover recovery of fine - redemption fine set aside - confiscation also set aside. Appeal allowed in part. - C/111 & 112/2009 - A/ 85987-85988/2018 - Dated:- 5-4-2018 - Justice Dr. Satish Chandra, President And Shri C J Mathew, Member (Technical) Shri prasad paranhape, advocate for the appellant Shri chatru singh, assistant commissioner (AR) for the respondent Per: C J Mathew The issue in disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of the sale for export to the country of importation of the imported goods. 3. Reliance was placed on the Compendium of Customs Valuation texts of the Customs Code Committee in the Customs Valuation Sect ion of the European Commission (TAXUD/800/2002-EN ) and the react on the GATT Customs Valuation Code by Saul L Sherman and Hinrich Glashoff published by ICC Publishing S.A. Paris New York as well as the decision of the Tribunal in Saregama Indian Ltd v. Commissioner of Customs, Airport, Mumbai [2017 (345) ELT 236 (Tri. Mumbai)], and of the Hon ble High Court of Bombay in Commissioner of Customs (CSI Airport) v. Star Entertainment Pvt Ltd [2015 (329) ELT 50 (Bom)] and Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc. [2009 (248) ELT 122 (Bom.)] , upheld by the Hon ble Supreme Court. 4. According to Learned Counsel, the agreed consideration between the appellant and the licensor involves two components, viz, cost of the import and the royalty/licence fee for the import. According to them, the invoking of rule 3 is incorrect as the goods that are imported are not sold but, after usage are re-exported back to licensor indicating that these are loaned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the non availability of split up charges, the Commissioner s order is justified that the royalty charges given in the invoice is required to be accepted in terms of Rule 9(1)(c) of the Valuation Rules, 1988. Therefore there is no merit in the appeal and the same is dismissed and submitted that the writ petition filed against the said order of the Tribunal ha d been dismissed. 8. Having heard both sides, we are required to determine whether the assessable value, as enhanced by the original authority and upheld by the first appellate authority, is in consonance with Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. Appellant claims that the royalty/licence fee is consideration for the right to reproduce the imported goods in India and that, being a temporary assignment of rights to reproduce/telecast, it does not fall within the ambit of coverage under transaction value in rule 3 and, thereby, effectively negates the invoking of rule 10 to add to the declared value. The root of their contention is that it is only the media which is imported with the contents transforming into goods only after replication and other activities rendering them usable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er imported the feature film for exploitation only and without exploitation there is no purpose for importing the feature film. On the other hand, the purpose of importation of the film is only for exploitation. For the purpose of exploitation the charges is stated to 12500 US $. As per Rule 19(1)(c) the royalty and licence fee relating to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of the sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable. 7. On consideration of the submissions made, we notice that the aspect pertaining to includibility of royalty charges cannot be disputed in view of the ruling rendered by the Hon ble Supreme Court and the Tribunal decision noted above. The learned Counsel has made fervent appeal for the exclusion clause of the interpretative rules which according to him has been accepted by the Commissioner (Appeals). The learned Counsel relied upon the typed papers in the paper book which is said to be the ruling of US and Finland export valuation book. The authenticity of these is not proved. It does not have persuasive value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact suchaplea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. would not apply to the present set of facts and circumstances which are materially different. 12. The goods having been cleared in the normal course, the proceedings for recovery and confiscation were initiated much later. The imports were effected without any bond that could cover recovery of fine. Relying upon the decision of the Hon ble High Court of Bombay in re Finesse Creations 5. In our opinion, the concept of redemption fine arises in the event the goods are avail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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