Custom, Excise & Service Tax Tribunal
Levigo Engineering India Pvt. Ltd vs Commissioner Of Central Excise, ... on 15 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21724 / 2014 Application(s) Involved: C/Stay/22705/2014 in C/22364/2014-DB Appeal(s) Involved: C/22364/2014-DB [Arising out of Order-in-Appeal No. 136/2014 dated 30/05/2014 passed by the Commissioner of Customs, Bangalore] Levigo Engineering India Pvt. Ltd. 38/1, Shed No. 1, Nadkerappa Industrial Estate, Andrahalli Main Road, Near Peenya 2 Stage, Post Vishwaneedam Bangalore 560 091 Karnataka Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-I Post Box No. 5400, CR Buildings, Bangalore 560 001 Karnataka Respondent(s)
Appearance:
Mr. Chidanand Urs, Advocate Rukmani Menon No.128, 'A' Wing Raheja Arcade, Koramangala, Bangalore - 560 095 For the Appellant Mr. A.K. Nigam, AR For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 15/09/2014 Date of Decision: 15/09/2014 Order Per: B.S.V. MURTHY The appellant is manufacturer of wood working machinery. They have a joint venture partner M/s. Costa Levigatric S.P.A, Italy who holds 80% of the total paid up capital of the company. The appellant had entered into a know-how Licence and Supply Agreement with their holding company on 10.09.2010. They have been importing parts and components of the machinery from their holding company from their inception. They also procured some parts indigenously and used it with imported parts to manufacture wood working machinery which is sold locally as well as exported. The brand name of the holding company is used. The importer registered with SVB Custom House, Chennai and after consideration of their case the Deputy Commissioner by his order No. 1197/2013 dated 12.12.2013 upheld loading factor for the year 2011 t 17.65%, for the year 2012 at 12% and from 2013 onwards at 21.75%. He has further put loading on account of royalty for the year 2009-10 at the rate of 4.83%, 2011 at the rate of 15.01%, 2012 at the rate of 44.07% and from 2013 onwards at the rate of 9.38%. Further he has loaded technical know-how fees for the year 2009-10 at 29.16%, 2011 for 100.94%, 2012 at 51.90% and 2013 at 42.17%. .
2. Aggrieved by this order appellant filed an appeal and the learned Commissioner (Appeals) has upheld the loading of 21% and as regards technical know-how fees and royalty he has remanded the matter.
3. The appellants are seeking early hearing on the ground that the matter is one of recurring nature and the issue has to be decided early otherwise in every import, the appellant would be siding with 75% deposit for the loading factor. After hearing both the sides for quite some time, we came to the conclusion that the matter may be finally decided at this stage itself and therefore early hearing application is allowed and the matter is taken up for final hearing with the consent of both sides.
4. As regards the technical know-how and royalty, the Commissioner has already remanded the matter with instructions that the original adjudicating authority should examine the issue again. We do not consider that we have to go into this issue again and we leave it to the best judgment of the lower authority to decide the issue afresh. Needless to say the order will be passed in accordance with law after considering all the submissions. As regards the loading of 21.75%, it has been upheld by the Commissioner (Appeals) and appellant is aggrieved by this decision. The learned counsel relied upon the decision in the case of Rehau Polymers Pvt. Ltd. Vs. CC (Import), Mumbai [2014 (301) E.L.T. 116 (Tri.-Mum.)]. In this decision it was held that the price adopted by the importer was on cost plus method and price was sole consideration for sale. In the absence of any allegation of flow-back or payment of additional consideration by importer to foreign supplier, the invoice value adopted for assessment was in accordance with law. It was also held that evidence was available on record with regard to costing. Learned counsel submitted that in this case also, the cost of raw materials, manufacturing, administrative/sales overhead etc have been submitted as in that case. This decision was not available to the lower authority at the time of adjudication. Therefore in our opinion this issue also should be remanded to the original adjudicating authority for fresh consideration taking into account the decision referred to above and also every submission that may be made by the appellants at the time of hearing afresh.
(Operative portion of the order has been pronounced in open court on 15.09.2014) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER iss