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11. Considering the above factual matrix and on a perusal of the licence agreements, we note an omission in the issues framed for determinants by the adjudicating authority. The agreement are for sale of feature films (or motion picture to assign it an appropriate description) in India after replication. It is not in dispute that media in the form of master tapes have been imported and declared under the appropriate tariff heading for determination of rate of duty. The media also contained the motion picture produced by, and belonging to, the contracting studios. Those motion pictures have an identity in their own right arising from existence on multiple media without in any way compromising the product itself or its value to the intended consumer. Undoubtedly, destruction or damage to the storage media destroys or damages the motion picture contained in it, the picture itself, however, is not erased out of existence. Indeed, as recorded in the impugned order, the motion picture can be re-sent should the need arise. And it is the motion picture that the viewing public has in mind with reference to the product  and source of revenue to render the production venture viable. Therefore, resolution of issues framed by the adjudicating authority is not possible without determining whether motion pictures is goods in its own right and independent of the media that is used for storing it. Conceptually, the impugned order is placed in jeopardy for presuming without a finding, that motion pictures as consigned to the appellant-importer is dutiable within the meaning of section 12 of Customs Act, 1962. The manner in which the Honble Supreme Court arrived at the decision in re Associated Cement Companies that ideas embedded on paper or disks are dutiable is a clear pointer to the direction that the adjudication should have taken but did not.

16. Of the various decisions cited, and some of them by both sides, we have already observed supra that the decision in Associated Cement Companies Ltd is not applicable in the present set of circumstances. Nevertheless, it, along with that of Commissioner of Customs v. Ferodo India Pvt Ltd [2008 (4) SCC 563], has been relied upon in the decision of the Honble Supreme Court in re Living Media India Ltd. In laying down the proposition in re Ferodo India Pvt Ltd that even indirect recompense through royalty and fee must be includible in the transaction value, the Honble Supreme Court considered Collector of Customs (Prev) Ahmedabad v. Essar Gujarat Ltd [1996 (88) ELT 609 (SC)]. The decision in re Indo Overseas Films, which was upheld by the Honble High Court of Madras, has been relied upon by the adjudicating authority in support of his rejection of the claim for exclusion of the costs attributable to reproduction rights owing to inability of appellant to furnish the break-up of royalty; it has been cited by the appellant as relevant to the present dispute which is solely about cost of reproduction rights. This, too, places reliance on Essar Gujarat Ltd. While the facts relating to import in re Star Entertainment Pvt Ltd are, by and large, similar to that of the appellant-importer before us, it needs noting that the imports in that case were for in telecast and public performance in contradistinction with the ultimate consumer of M/s Saregama India Ltd. In re Star Entertainment Ltd, the difference of opinion referred to Third Member was resolved by placing reliance on the decision in re Living Media Ltd. Therefore, it can safely be said that these and the decisions in re Sony BMG Entertainment (I) Pvt Ltd, re Sony Music Entertainment Pvt Ltd, re Excel Productions Audio Visuals Pvt Ltd and re Universal Music India P Ltd pertaining to motion picture and music rights flow from the decision in re Essar Gujarat Ltd. There is a particular significance to the preceding observation that we shall come to at a later stage. The decisions in re Excel Productions Audio Visuals Pvt Ltd and in re Universal Music India P Ltd are in relation to pre-recorded compact discs.