1993 (7) TMI 200 - AT - Customs

Summary

Issues Involved:

1. Legality of import from the ITC angle
2. Valuation of the imported machine
3. Justification for confiscation
4. Quantum of redemption fine

Issue-wise Detailed Analysis:

1. Legality of Import from the ITC Angle:

The appellants imported a second-hand Planetu P-24 SW printing machine and claimed clearance under O.G.L. for the policy period AM 1982-83. The contract for the machine was initially executed on 14-10-1982 and registered with the bank on 9-12-1982. However, the machine was delivered during the policy period AM 1983-84, when it was no longer listed under OGL items. The adjudicating authority concluded that the import was unauthorized due to amendments in the contract and the extended delivery period. The Tribunal held that the original contract was materially altered in terms of price and delivery date, constituting a new contract in January-February 1984. Consequently, the import did not meet the requirements of Condition 7 of Appendix 10 of the Policy Book AM 1982-83, making it unauthorized.

2. Valuation of the Imported Machine:

The appellants declared the machine's value as SEK 350,000, but the adjudicating authority assessed it at SEK 400,000, suspecting under-valuation. The appellants argued that the value of second-hand machines depends on their condition and that the price reduction was due to further use and depreciation. The Tribunal found no evidence of contemporaneous import of an identical machine and noted that the machine had been used for seven years, affecting its value. The Tribunal accepted the appellants' declared value of SEK 350,000, concluding that the department failed to prove under-valuation.

3. Justification for Confiscation:

The adjudicating authority ordered the confiscation of the machine under Section 111(d) of the Customs Act, 1962, read with Section 3(2) of the Imports and Exports (Control) Act, 1947, but allowed the option to pay a fine in lieu of confiscation. The Tribunal confirmed the confiscation, noting that the import was unauthorized from the ITC angle.

4. Quantum of Redemption Fine:

The adjudicating authority imposed a fine of Rs. 1,25,000/- in lieu of confiscation. The Tribunal noted that the appellants were actual users and intended to import the machine during the policy period 1982-83 but faced delays. Considering the lack of evidence for under-valuation, the Tribunal reduced the fine to Rs. 1,00,000/-.

Conclusion:

The Tribunal partly allowed the appeal, setting aside the order fixing the machine's value at Rs. 5,62,984/- and directing it to be fixed at SEK 350,000/- as per the exchange rate on the import date. The order of confiscation was confirmed, but the fine in lieu of confiscation was reduced to Rs. 1,00,000/-.