SC rules that fees for technical services paid in connection with setting up of plant, not includible in the value of imported plant and machinery, for levy of Customs Duty

 

This Tax Alert summarizes the decision of the Supreme Court in the case of Commissioner of Customs, Ahmedabad vs. Essar Steel Ltd.

 

In this case, the assessee entered into a technical services agreement with a foreign supplier, in relation to implementation of a project to set up a plant in India. The purchase order for the import of plant and machinery was placed subsequently.

 

The issue before the Apex Court was whether the payment made to the foreign supplier for the technical services is to be added to the value of plant and machinery, on the basis that such payment is made as a condition of sale of imported goods, in terms of Rule 9(1)(e) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988.

 

On conjoint reading of the technical services agreement and the purchase order, it was observed that the technical services are to be rendered only post import of the capital goods in India and hence, cannot be construed as a pre-condition for the sale of plant. Consequently, the fees  for technical services cannot be added to the value of capital goods, in terms of Rule 9(1)(e) of the said Rules.

 
However, it is necessary to examine the facts of each case and the agreements entered into between the parties, while applying the ratio of the Apex Court ruling