ASHA PRINTERY Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) APPELLANT purchased one unit of Adast Dominant 745 -Four Colour Offset Printing Machine through M/s. J. Mahabeer and Co. Pvt. Ltd. from a foreign manufacturer. Value of that machine was fixed at Rs. 8,51,400.00 on import documents. As per the contract entered into between the appellant and M/s. J. Mahabeer and Co. Pvt. Ltd., a sum of Rs. 43,000.00 was also payable by the appellant to M/s. J. Mahabeer and Co. Pvt. Ltd. This amount was described in the contract as fee for technical advice to be given by M/s. J. Mahabeer and Co. Pvt. Ltd. The printing machine was imported pursuant to that agreement. It was provisionally assessed to duty and clearance was effected. Thereafter, it was noticed by the department that over and above the amount mentioned in the invoice, commission was payable by the appellant purchaser to M/s. J. Mahabeer and Co. Ltd. The amount so payable and actually paid was to be included in the price of the machine and duty realised accordingly. In this view, show cause notice was issued requiring the appellant to state why the commission payable to M/s. J. Mahabeer and Co. should not be added to the value of the imported printing machine and duty realised. Appellant contested the claim stated in the show cause notice. Adjudicating authority rejected all those contentions and by Order -in -Original No. SSG -INF -93/AJ/89 SUB (Pt. 9), dated 11 -3 -1991 confirmed the demand and directed the appellant to pay Rs. 77,981.00 as differential duty. This order is under challenge.

(2.) LEARNED Counsel representing the appellant raised three contentions for our consideration. The first point v/as that show cause notice issued was barred by limitation and so the Order -in -Original passed by the Collector is unsustainable. The second contention was that the appellant did not pay any amount by way of commission and that the amount of Rs. 43,000.00 was paid to M/s. J. Mahabeer and Co. for the technical advice rendered by them. So, no duty can be imposed on the amount paid towards charges, i.e. technical advice given by M/s. J. Mahabeer and Co. The third ground that was raised is that even conceding for argument sake that amount of Rs. 43,000.00 was paid to M/s. J. Mahabeer and Co. as commission, the Collector was not justified in demanding differential duty on 20% of the price. We shall proceed to deal with these arguments hereinbelow.

(3.) WE heard learned Counsel representing the appellant and learned D.R. in extenso.