Case: Commissioner of Customs (Port), Kolkata Vs. M/s. J.K. Corporation Limited

The Revenue is in appeal before us aggrieved by and dissatisfied with the judgment and final order dated 15th May, 2006, passed by the Customs Excise and Service Tax Appellate Tribunal, Kolkata, in Appealof 2002. The fact of the matter is not in dispute. M/s. Orissa Synthetics Limited is a division of the respondent herein. It, being desirous of undertaking manufacture of Polyester Oriented Yarn and Flat Yarn, entered into a collaboration agreement with M/s. Samsung Company Limited and M/s. Chiel Synthetics Inc., both of Korea, on 18th November, 1999. M/s. Cheil Synthetics Inc. is said to be an associate company of M/s. Samsung group under the laws of Republic of Korea. The said Agreement is in two parts;provides for licence, knowhow and technology, whileprovides for supply of equipment as a part of necessary plant and machinery and equipment for manufacture of polyester oriented yarn.stipulates lumpsum payment of US $14,00,000 by the respondent to the said companies for supply of licence, knowhow and technology. Underof the said Agreement, however, price of foreign equipments are said to be US $34,86,000.00 + DM 12,00,000.00 + J. Yen 88,50,00,000.00.2. Pursuant to and in furtherance of the said collaboration Agreement, the respondent herein had imported plant and machinery manufactured by the said companies. The Assistant Commissioner of Customs, Special Valuation Branch, in its order dated 28th May, 1999, opined that the amount of consideration mentioned in both parts of the Agreement should be added together, having regard to the fact that the same forms part of an integrated contract, the value of knowhow estimated at US $ 40,00,000.00 must be added to the value of the equipment, on the premise that payment thereof was afor sale of the equipments underAn appeal was preferred there against by the respondent before the Commissioner of Customs. The appellate authority, by reason of its order dated 31st May, 2000, dismissed the said appeal. However, the Customs Excise and Service Tax Appellate Tribunal [CESTAT], on a further appeal preferred by the respondent, allowed the same and remitted the matter to the authority below for a de novo decision in the light of a decision of this Court in Tata Iron and Steel Company Limited vs. Commissioner of Central Excise and Customs Bhubaneswar, Orissa (2000 (3) S.CC.472). The Deputy Commissioner of Customs, however, held that the decision of this Court in TISCO (supra) is distinguishable stating that both parts of the Agreement,B, are complimentary to each other and one part thereof cannot be implemented without complying with the conditions of the other part of the Agreement. The original authority, therefore, upheld its earlier order. The Commissioner of Customs, however, in the appeal preferred by the respondent herein, set aside the said order dated 24th June, 2002, holding that the decision of this Court in TISCO (supra) is squarely applicable to the facts of the case and that Collector of Customs (Prev.), Ahmedabad vs. Essar Gujarat Limited [(1996) 88 E.L.T.609 (S.C.)] is not applicable. The Tribunal dismissed the appeal preferred thereagainst by the Revenue.

Reasoning: 9. The basic principle of levy of customs duty, in view of the aforementioned provisions, is that the value of the imported goods has to be determined at the time and place of importation. The value to be determined for the imported goods would be the payment required to be made as a condition of sale. Assessment of customs duty must have a direct nexus with the value of goods which was payable at the time of importation. If any amount is to be paid after the importation of the goods is complete, inter alia by way of transfer of licence or technical knowhow for the purpose of setting up of a plant from the machinery imported or running thereof, the same would not be computed for the said purpose. Any amount paid forservice or activity, would not, therefore, come within the purview of determination of assessable value of the imported goods so as to enable the authorities to levy customs duty or otherwise. The Rules have been framed for the purpose of carrying out the provisions of the Act. The wordings of Sections 14 and 14(1A) are clear and explicit. The Rules and the Act, therefore, must be construed, having regard to the basic principles of interpretation in mind.19. However, TISCO (supra), this Court took note of interpretative note to Rule 4 and held:".........The part of the Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of the imported goods......."20. The said decision is squarely applicable to the facts of the present case.21. We cannot, therefore, accept the contention of Mr. Radhakrishnan. More over, no case has been made out that the sale price of the imported plant and machinery had been