1995 (9) TMI 403 - AT - Customs

Summary

Issues Involved:
1. Legality and propriety of the Collector's order.
2. Correct determination of the number of spinning machines imported.
3. Alleged undervaluation of the plant and machinery.
4. Eligibility for concessional assessment under Heading 84.66 of the Customs Tariff Act, 1975.
5. Coverage of import licenses for the imported goods.
6. Alleged attempt to defraud the Government of Customs duties.
7. Imposition of fine in lieu of confiscation and penalty.
8. Cross-objection by the respondents regarding the valuation of specific items and dismantling charges.

Detailed Analysis:

1. Legality and Propriety of the Collector's Order:
The Tribunal examined whether the Central Board of Excise and Customs had properly exercised its power under Section 129D(1) of the Customs Act, 1962. The respondents argued that the Board's order was neither illegal nor improper. The Tribunal found that the Board's action was within the parameters of Section 129D, which allows the Board to act upon the legality and propriety of the Collector's order. The Tribunal dismissed the respondents' objections, noting that the term "propriety" covers correctness, thus validating the Board's examination of the Collector's order.

2. Correct Determination of the Number of Spinning Machines Imported:
The Collector concluded that the respondents imported 8 complete spinning machines and component parts sufficient for assembling 4 additional machines. The Tribunal upheld this finding, rejecting the department's claim that 12 spinning machines were imported. The Tribunal found no evidence to support the department's contention and agreed with the Collector's interpretation of the import license and the list of items attached to it.

3. Alleged Undervaluation of the Plant and Machinery:
The Collector found no undervaluation of the plant from the standpoint of plant capacity, which was linked with the denier of the yarn produced. The Tribunal upheld this finding, noting that the actual production did not exceed the plant capacity. However, the Tribunal remanded the issue of the value of the reconditioned spinning machines and equipment to the Collector for a de novo decision on merits after granting an opportunity to the respondents to make their submissions.

4. Eligibility for Concessional Assessment under Heading 84.66 of the Customs Tariff Act, 1975:
The Collector concluded that the benefit of concessional assessment under Heading 84.66 was correctly availed for the goods imported, as they were in accordance with the contract executed on the strength of the proforma invoice. The Tribunal upheld this finding, noting that the imported goods were covered by the import licenses and the contract registered under the Project Imports (Registration of Contract) Regulation, 1965.

5. Coverage of Import Licenses for the Imported Goods:
The Collector found that the import licenses covered the goods imported. The Tribunal upheld this finding, noting that the respondents' import licenses were valid and covered the imported goods. However, the Tribunal left the issue of the valuation of the second-hand spinning machines and equipment open for the Collector's decision afresh.

6. Alleged Attempt to Defraud the Government of Customs Duties:
The department alleged that the respondents attempted to defraud the Government of Customs duties amounting to Rs. 119,64,46,555.80. The Tribunal found this charge unsustainable. The demand was based on an across-the-board increase of 100% on the declared value of the goods, which was found to be unsustainable. The Tribunal also found that the charge of importing four additional spinning machines without a license was not sustainable, except for the limited issue of the value of the reconditioned machines, which was remanded to the Collector for a fresh decision.

7. Imposition of Fine in Lieu of Confiscation and Penalty:
The Tribunal noted that the question of fine in lieu of confiscation and penalty is linked with the de novo decision to be taken by the Collector regarding the value of the reconditioned spinning machines and equipment. The Tribunal remanded this issue to the Collector for a fresh decision.

8. Cross-Objection by the Respondents:
The respondents filed a cross-objection challenging the Collector's order to appraise the value of screw pump motors and booster pump motors and to add dismantling charges to the assessable value of the last imported consignment. The Tribunal dismissed the cross-objection, noting that the issue of dismantling charges had been decided against the respondents in a previous Tribunal decision (Bombay Dyeing v. Collector, 1990). The Tribunal also found that the issue of reappraising the value of the booster pump motor and screw pump motor lost its importance as the entire issue of valuation was being reconsidered.

Conclusion:
The Tribunal upheld the Collector's order in most respects, except for the issue of the value of the reconditioned spinning machines and equipment, which was remanded to the Collector for a fresh decision. The cross-objection filed by the respondents was dismissed. The appeal and cross-objection were disposed of on these terms.