TMI Blog2006 (7) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be undertaken. The licensed products were defined under that Agreement as follows: LICENSED PRODUCTS shall mean such industrial sewing threads, twines and braids and related products as are manufactured by BVTL in accordance with the know-how and technology licensed by BARBOUR to BVTL from time to time under the Technical Collaboration to be executed by and between BARBOUR AND BVTL. A list of LICENSED PRODUCTS is attached hereto as Attachment and made part of this AGREEMENT. The list of licensed products attached to this Agreement admittedly did not contain any machinery. The consideration Clause 6.1(a) of the Agreement, inter alia, provided as under: 6.1 Lumpsum a. In consideration of the provision of the TECHNICAL KNOW-HOW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported could not have functioned without the disclosure of the know-how and, therefore, the fees which were payable under the know-how Agreement as a lump sump amount were attributable to the import of machinery and ought to be computed along with the price of the machinery for the purpose of imposition of the Customs duty. The learned authorized representative very fairly submitted that the Tribunal in Barbour Vardaman Thread Ltd. v. Commissioner of Customs, Delhi reported in 2004 (177) ELT 966 (Tri.-Del.) of the same appellant had set aside a similar order of the Commissioner (Appeals) on this issue. 5. On going through the terms and conditions of the Licence Agreement, we do not find any stipulation that the licence fees related to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt did not specify machinery. From the terms of the Agreement, it is not possible to infer that any amount of consideration contemplated in Article 6, was for the machinery which was imported. 5.1 The Tribunal in the appellant's own case reported in 2004 (177) ELT 966 (Tri.-Del.), in the background of identical facts on the issue under consideration before us, held in paragraph 6 as under: 6. Rule 9 of the Customs Valuation Rules provides that for the purpose of determining the transaction value, cost of royalties and license fee relating to the imported goods that the buyer is required to pay directly or indirectly as a condition of the sale is to be included in the price of the imported goods. The learned Advocate has drawn our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and allow the appeal. Since the Revenue has not been able to establish any nexus between the licence fees and the imported goods by showing that the buyer was required to pay, directly or indirectly as a condition of the sale of the goods being valued, the licence fees, the Commissioner (Appeals) was not justified in including the amount payable under the know-how Agreement in the price of the goods in question. We do not find any valid reason to take a different view of the matter than the one taken earlier by the Tribunal in the appellant's own case. The impugned order of the Commissioner (Appeals) upholding the order-in-original to the aforesaid extent is hereby set aside and the appeal is accordingly allowed. (Dictated and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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