Per K. Sankararaman :

The appellant imported one Ultra Sound Machine from U.S.A. in January 1988. In the Bill of Entry filed for its clearance, the assessable value was declared as Rs. 410464 corresponding to invoice price of US$ 31,852. A sum of US$ 7463 was not included by them in the assessable value originally but it appears the customs authorities directed them to include the same. This amount was then entered in the box captioned Loading/Local Agency Commission. The payment of duty was made on two days, 20.1.88 and 27.1.88, the latter payment being for the duty referable to the sum of US$ 7463 which was made under protest. The appellant filed a refund claim for the duty paid on such added value on the ground that such added value was Technical Handling Charges paid to the local agent of the suppliers for installation, servicing and training which should not have been included in the assessable value. The refund claim was for Rs. 38,469. The appellants also made an additional claim stating that as per the revised agreement they had to pay only a sum of US$ 6866 towards installation, servicing, training and technical handling charges to the Indian Agent and not US$ 7463 as originally agreed. On this count, refund of Rs. 3077 was claimed as due to them. The Assistant Collector rejected the claim holding that installation charges are part of assessable value and that the request for amendment of Bill of Entry due to revision in agreement for installation charges from US$ 7463 to US$ 6866 cannot be entertained in terms of provisions of Section 149 of Customs Act, 1962. The order was unsuccessfully challenged before the Collector (Appeals) who held that for the claim that installation charges had been wrongly included in the column "Loading/Local Agency Commission" in the Bill of Entry there was no evidence whatsoever. After observing that the specific amount of local agency commission had not been mentioned, the Collector (Appeals) went on to add that the appellants were claiming the entire amount of US$ 7463 shown in the Bill of Entry as Local Agency Commission. He stated that the appellants had not submitted any documentary evidence such as agreement with the supplier/local agent to substantiate their case. Even while stating that the appellants had not substantiated their claim that the said charges were only local agent's commission, he observed that the claim made at that stage would amount clearly to amendment of the Bill of Entry in a substantive manner affecting their own declaration and the assessable value which was not permissible under section 149 of Customs Act, 1962. On such a reasoning the Collector (Appeals) rejected the appeal. Hence the present appeal.

2. Heard both sides and perused the record. We find that the impugned order in appeal has been assailed, inter alia, on the ground that the Collector (Appeals) had erred in holding that there was no evidence to substantiate the appellants' claim that installation charges were wrongly shown as charges for loading/unloading Agency Commission charges. The question that the amount in question was for loading/unloading and agency commission was not an issue before either the Assistant Collector or before the Collector (Appeals) and that the Collector had gone beyond the order of the Assistant Collector and travelled beyond the issue involved in the case. It has been contended that the Commission to the local agent was for the foreign supplier to pay and that it was not in the knowledge of the appellants and it was neither possible nor necessary for them to declare the amount of commission paid to the local agents. The case of the appellants before the lower authorities, reiterated in the present appeal also, is that the amount in question was paid by them in India to the local agents of the suppliers for the purpose of installation, personnel training and servicing of the machinery. These are post clearance expenses and the supply and sale of the machineries was