Ion Exchange (India) Limited vs Commissioner Of Customs, Jnpt, ...

[Arising out of Order-in-Appeal No. 73/2004(JNCH) dtd. 24/9/2004 passed by the Commissioner of Customs (Appeals), Mumbai-II]

For approval and signature:

Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

Ion Exchange (India) Limited : Appellants

VS

Commissioner of Customs, JNPT, Nhavasheva : Respondent

Appearance

None for the Appellants Shri M.K. Sarangi, Joint Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of hearing: 10/9/2015 Date of decision 10/9/2015

ORDER NO.

Per: Ramesh Nair

This appeal is directed against Order-in-Appeal No. 73/2004(JNCH) dtd. 24/9/2004 passed by the Commissioner of Customs(Appeals), Mumbai-II, wherein Ld. Commissioner (Appeals) upheld the order-in-original and rejected the appeal filed by both, assessee and Revenue.

2. The issue involved is whether lump sum payment made towards technical know how is includible in the value of imported goods for the purpose of assessment.

3. Appellant vide letter dated 12/8/2015 requested for deciding the matter on merit.

4. Shri M.K. Sarangi, Asstt. Joint Commissioner (A.R.) appearing on behalf of the Revenue submits that appellant filed appeal on the ground that the lump sum payment made towards technical know how was not paid to the supplier of the imported goods therefore the same is not includible in the value. He submits that this aspect was not considered by both the lower authorities therefore matter deserves to be remanded to the Original Adjudicating Authority.

5. We have carefully considered the submission made by Ld. A.R. and also written submissions by the appellant.

6. We find that it is very vital aspect regarding the lump sum payment of technical know how whether it is paid to the foreign supplier of goods or to some other persons for deciding whether the said amount of technical know how is to be included in the transaction value of the imported goods. It is observed from the submissions made by the appellant vide their letter dated 22/9/1991 that technical know how agreement which entered into between appellant and the M/s. Hydranautics Water System, USA has not been implemented, accordingly they have not made any lump sum payment of US$ 3,60,000/- to the supplier. To this effect C.A. Certificate was also submitted certifying that the amount of technical know how was not paid to the supplier company M/s. Hydranautics Water System, USA. However this fact has not been considered in the proper perspective by the adjudicating authority as well as the Commissioner (Appeals). We are of the view that if the payment of technical know how was not made to the supplier company, there is no question of enhancing the value of imported goods on this count. Since, both the authorities have not dealt with this vital fact that the payment of technical know how was not made to supplier the whole matter deserves to be re-considered. We, therefore, remand the matter to the Original Adjudicating authority to pass a fresh order considering above facts. Needless to say that appellant shall be given opportunity of personal hearing and for submission of additional documents, if any required. Since the matter pertains to period 1991, denovo adjudication shall be completed within a period of two months from the receipt of this order. The appeal is disposed of in above terms by way of remand.

(Operative part pronounced in court)

C.J. Mathew Member (Technical) Ramesh Nair Member (Judicial)

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4 APPEAL NO. C/1230/04