Customs, Excise and Gold Tribunal - Calcutta
Spaceage Multi Products (P) Ltd. vs Commissioner Of Customs, Calcutta on 12 September, 2001
Equivalent citations: 2002(140)ELT167(TRI-KOLKATA)
JUDGMENT
Archana Wadhwa
1. The appellant entered into a technical collaboration with M/s.Cell Power Co.Ltd., Taiwan for manufacturing, assembling and sale of UPS systems. As per the agreement, M/s. Cell Power Co.Ltd. was to supply technical knowhow, plant, machinery and equipment to the appellants. The appellants were to pay technical knowhow fee of US Dollers 10,000 in three instalments. It is seen that the appellant had paid the first instalment of 3,000 US Dollars to their collaborators. Thereafter it seems that the said agreement expired and its validity was not extended. As a consequence no capital goods or technical knowhow have been imported by the appellant.
2. The Deputy Commissioner of Customs, Calcutta in his impugned order passed in de novo proceedings has held that inasmuch as the appellant had already paid the first instalment of US Dollars 3,000, which have not been remitted back to them after the expiry of the agreement, the appellants are required to pay duty on the said amount at the rate applicable to the complete UPS systems. Relevant paragraph of the order of the Deputy Commissioner is reproduced below:-
"I find that at the time of signing of the agreement an amount of US $ 3,000.00 being first instalment out of total payable mount of US $ 10,000.00 was remitted to the Cell Power. Subsequent installment payments have not been made to the collaborator as stated by the Spaceage. Nothing has been stated by the Spaceage about the fate of the US $ 3,000.00 which was remitted to the Cell Power immediately after the signing of there 'agreement'. It transpires that even after a lapse of more than 6(six) months the amount of US $ 3,000.00 has not been remitted back to India consequent to expiry of the 'agreement'. In these circumstances I think it proper to pass an order to the effect that the Spaceage within 90 days hereof will either produce the documentary evidence to the concerned apprising group regarding remittance of US $ 3,000.00 back to India or any other adjustment of the said amount approved by the RBI in the event of signing of a new agreement with the Cell Power or will pay customs duty on the said amount at the rate applicable on the complete UPS on the date of payment of the amount of US $ 3,000.00"
3. On an appeal against the above order of the Deputy Commissioner was filed before Commissioner of Customs (Appeals), who has rejected the same by observing that the foreign currency remitted out of India has to be accounted for. Hence the present appeal.
4. We have heard Shri B.N. Chattopadhyay, ld.consultant appearing for the appellant and Shri A.K.Chattopadhyay, ld.JDR appearing for the Revenue. Admittedly nothing has been imported by the appellant as a consequence of agreeing into an agreement with M/s. Cell Power Co.Ltd., Taiwan. There is no dispute about the fact that the technical collaboration agreement entered into by the appellant with their foreign collaborators expired and the same was not extended. The appellants had paid the first instalment of US $ 3,000.00 to their foreign collaborators. The said amount is still lying outstanding with M/s. Cell Power Co. Ltd. and as per the appellants they are making efforts to get back the said amount from their foreign collaborators. However, as rightly argued no duty of customs can be demand on the said amount of US $ 3,000.00 at the rate applicable to UPS, when nothing has been imported by the appellant. There is no provision under the customs act for realisation of customs duty on the accounts remitted to the foreign collaborators, in the absence of any imports made by the importers. As such we are of the view that the impugned orders passed by the authorities below are not sustainable. The same are accordingly set aside and the appeal is allowed with consequential relief to the appellants.
(Pronounced)