1988 (3) TMI 298 - AT - Customs

Issues Involved:

1. True value of the second-hand granite block cutting machine.
2. Adequacy of the import license value.
3. Applicability of the lower rate of customs duty for project imports.
4. Confiscation and penalty under Sections 111(d), 111(m), and 112 of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. True Value of the Second-hand Granite Block Cutting Machine:

The primary dispute in this appeal concerns the true value of the second-hand granite block cutting machine imported by the appellants. The appellants declared the value of the machine at Rs. 98,498.56, supported by an import invoice showing the FOB value of the machine as DM 14,000. However, the Customs authorities noted that the declared value did not include freight, which was found to be about Rs. 34,000/-. This high freight cost raised doubts about the genuineness of the declared value. Upon further inquiry, it was found that the original purchase price of the machine by the Dutch supplier was Dutch Guilders 1,77,000, and the cost of a new machine had risen to Dutch Guilders 2,15,000 by the time of import. The Customs authorities calculated that, after reasonable depreciation, the machine's value should have been over Rs. 7 lakhs, not Rs. 98,000/-. Consequently, a show cause notice was issued alleging undervaluation and proposing confiscation under Sections 111(d) and 111(m) of the Customs Act, 1962, along with a penalty under Section 112. The Additional Collector upheld the undervaluation claim, assessing the machine's value at Rs. 7,27,391/- using Best Judgment Assessment under Section 14(l)(b) of the Customs Act, 1962, read with Rule 8 of the Customs Valuation Rules, 1963.

2. Adequacy of the Import License Value:

The import license value was also found to be inadequate. The Additional Collector determined that the license value was short by Rs. 6,44,791/-, leading to the machine's confiscation under Section 111(d) and a redemption fine of Rs. 5 lakhs, along with a penalty of Rs. 2 lakhs under Section 112. The appellants argued that the declared price should be accepted or, alternatively, the original purchase price should be converted into rupees at the exchange rate prevalent in October-November 1980, and depreciation allowed thereafter. However, the Tribunal found that the declared price was not bona fide and that the lower authority's method of Best Judgment Assessment was justified. The Tribunal ordered a 50% depreciation over the original purchase price, with the re-determined value to be debited to the import license.

3. Applicability of the Lower Rate of Customs Duty for Project Imports:

The appellants claimed the benefit of the lower rate of customs duty for project imports under Heading 84.66 of the Tariff. However, the show cause notice issued by the lower authority proposed to deny this benefit, and the Additional Collector did not record any finding on this matter. The Tribunal stated that it could not address this issue directly and that the appellants would need to obtain a separate order from the Additional Collector regarding the project import rate.

4. Confiscation and Penalty under Sections 111(d), 111(m), and 112 of the Customs Act, 1962:

The machine was liable to confiscation under Section 111(d) due to the shortfall in the license value and under Section 111(m) due to the mis-declaration of value. Although Section 111(m) was not specifically mentioned in the final order, the show cause notice clearly alleged mis-declaration and violation of Section 111(m). The Tribunal found that the impugned order imposing fine and penalty was legally in order. However, considering the machine's detention for over a year and the higher depreciation allowed, the Tribunal reduced the redemption fine from Rs. 5 lakhs to Rs. 25,000/- and the penalty from Rs. 2 lakhs to Rs. 10,000/-.

Conclusion:

The appeal is partly allowed, with the lower order modified as specified, confirming the revised fine and penalty.

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