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TMI Blog1985 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... lligence) on 10.8.1984, John Philipose, Chairman and acting Managing Director of the company (appellant in 98/85) stated that the quality of the veneers was not mentioned either in the contract or in other shipping documents, such as shipping bill, invoice etc. and the consignment was to be exported to one Takahashi Sholai of Japan for purposes of sale there. Since the appellants have not indicated in the shipping bill and other connected relevant documents the value, specification, quality and description of the goods which were sought to be exported, as per the provisions of the Export Control Order 1977 and the provisions of the Foreign Exchange Regulation Act, proceedings were instituted against the appellants by issue of a show cause notice which ultimately culminated in the impugned order now appealed against. 3. The learned counsel for the appellants submitted inter alia :- (1) Since the description of the goods is in identical terms in the shipping bills and the relevant invoices also indicate the same, there cannot be any mistaken identity about the goods in question and therefore, the change of misdeclaration is not legally tenable. (2) The goods in question are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Shingu Shoko Ltd., Tokyo, would certainly be taken as a circumstance against the appellants evidencing transactions contrary to law, though the same is not connected to concerned with the present consignment. The learned DR submitted that in terms of Sec. 14 of the Act the value of goods for purpose of assessment is the price at which such or like goods are ordinarily sold or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade. He contended that if the full export value of the goods is not given in the relevant documents, the same would be liable for confiscation. Fixation of minimum price for certain goods like mica, coir, etc. does not and will not mean that other articles sought to be exported need not reflect the correct market price in the relevant documents. 6. I have carefully considered the submissions of the parties herein. A perusal of the provisions of the Export Control Order 1977 with particular reference to Rule No. 13 would make it abundantly clear that an exporter is under a statutory obligation to furnish in the shipping bills and other connected documents the value, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the valuation of the export consignment in question would certainly be a contravention entailing confiscation. It is indeed strange that the Chairman and Acting Managing Director has stated before the authority that he could not say whether the value of the consignment of rosewood veneers covered by shipping bill No. 1699 dated 22.6.84 represents full export value of the goods . The Acting Managing Director could not even say how much was the cost of slicing of the veneers in the consignment in question. Even in the statement given before the Superintendent of Customs (Intelligence) on 10.8.84, the Acting Managing Director has admitted that he had not mentioned the quality of the veneers in the contract or in the other shipping documents such as shipping bill, invoice etc., notwithstanding the fact that the consignment was being exported for purposes of sale in a foreign country. The fact that the quality of rosewood veneers is determined mainly with reference to colour, structure, grains, absence of defects, thickness and other measurements, and the purposes for which they are used, does not admit of any controversy; nor is the same controverted by the appellants. Thickness of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y experienced traders and exporters in the field after personal inspection and evaluation of the consignment in question, the comparison of the prices or various export consignments of rosewood veneers of similar quality made from Cochin during the preceding few months, the comparison of the prices of rosewood veneers of comparable quality ruling in the local market and also after valuation of the consignment by the Department, the real value of the rosewood veneers under seizure was estimated at U.S. $ 2.40 per sq. mtr. The appellants notwithstanding the receipt of the show cause notice and their reply to the same, besides participation in the personal enquiry, never joined issue with the authorities with reference to the enquiries conducted by the Department, the opinion of the experts, comparative prices ruling in the market, value of export consignments of rosewood veneers of similar quality exported from the same port in the preceding few months nor did they want to avail themselves of an opportunity to cross-examine the persons connected with the sources of such information. In such circumstances it is puerile for the appellants to merely assert that the market enquiry and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and mens rea in respect of the goods under seizure. The plethora of circumstances and factual details do not leave any doubt in my mind that in the instant case the appellants had mens rea in attempting to export the goods under seizure in contravention of the provision of law. 7. At this stage let me refer to the authorities relied upon by the learned counsel for the appellants regarding undervaluation or under-invoicing. The ruling in the case of Albin v. Union of India, judgment of the Kerala High Court, reported in 1979 K.L.T. 585, has no application to the facts of the present case. That was a case where in terms of the notification issued under Sec. 6 of (Export Quality Control and Inspection) Act, 1963, Export Promotion Agency, the competent authority, certified to the quality and export worthiness of frozen shrimps and at the wharf the Customs authorities noticed some defects in the goods, called upon the Agency to conduct a fresh examination which the Agency did and declared the goods unexport worthy . The finding of the Court was that the certificate issued by the competent Agency was valid and operated till cancellation and after the declaration of unexport worthines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it any satisfaction which he thinks fit. The High Court observed : ......Here it is also relevant to note that it is not the case of the department that the price quoted and agreed upon between the parties at the time when the contract was entered into did not represent the market price prevailing at that time. The facts in the present case are entirely different and so this ruling has no bearing or relevance to the present case. Likewise, the ruling reported in 1985 ECR 646 (Cegat), Special Bench A , in the case of Rakesh Press v. Collector of Customs, Bombay has no relevance to the facts of the present case and is clearly distinguishable on facts. At the same time I should observe that the legal principles enunciated therein are against the appellants herein. That was a case where the charge of undervaluation was sought to be rested by the Collector in respect of an import on the basis of the value of similar goods imported in a solitary instance and the Tribunal found that the goods were not comparable in all aspects and the charge was not established on account of insufficient supporting evidence . The ratio in the ruling is that the Department can discharge the burde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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