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TMI Blog1985 (2) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 2 8" zip fasteners was approximately Rs. 0.56 paise per piece and that this price was based upon the catalogue price of the manufacturers M/s YKK Zippers (Singapore) Pvt. Ltd. It was also stated in the Show Cause Notice that on market inquiry it was confirmed that the zip fasteners imported more LFC 32 8" with pin lock slide fasteners and the goods are genuine YKK products. According to the notice, the price of such goods in the Delhi wholesale market from Japan and Singapore is approximately Rs. 22 per dozen with the slide fasteners. The Customs in the notice further recorded that a consignment of similar goods of 9" was cleared at the price of Rs. 0.62 paise CIF per piece under a Bill of Entry dated 11-9-1980. They also added in the notice that according to the price list for YKK zippers from M/s YKK Zippers (Singapore) Pvt. Ltd., effective from 1st June, 1980, the price of 8" LFC 32 with pin lock was Japanese yen 1594 CIF Bombay. The price of the same goods after 1st August, 1980 from Japan and Singapore was c.i.f. 1505 Japanese yen per piece. This information according to the Customs was obtained from the representative of the YKK Foreign Trade Department when he was in Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a price of Rs. 0.56 paise c.i.f. per piece. He, therefore, rejected the invoice price of 30 paise per piece as declared by the importer. He further took into consideration the plea that the importers had no option on colours and on this ground fixed the value at Rs. 0.50 paise c.i.f. per piece. 5. Aggrieved by this order, the appellants filed an appeal before the Central Board of Excise and Customs. They pleaded before the Board that the goods in question were purchased from a party in Singapore who had procured it for use in manufacturing activity but were forced to sell them as stock-lot. Therefore, there was no question of tallying the price with the price list of manufacturers. Further, the appellants stated before the Board that all the evidence disclosed in this case showed that the goods were mixed up and not according to separate colour lots and there have been other importation s by other importers. 6. The Board rejected the claim of the appellant for assessment of the goods at 30 paise per unit. They noted that it was not the case that the goods deteriorated in value through storage or suffered in any other respect. If the appellants were fortunate to get the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong to say that the three invoices did not cover the goods in question. They claimed that the YKK Zippers were of Singapore origin and that the Department did not prove anything contrary. 9. We have considered the arguments of both sides. From a perusal of the Collector s order we find that the following reasons were advanced for not accepting the value declared by the appellant in the invoice: (i) That the catalogue price of zippers of YKK make was approximately 50 paise per piece, and goods which are not of job lot or stock-lot could not be sold at a price lower than that of the manufacturer; (ii) That some enquiries were made from the Bombay Customs House and these supported the view that the value could not have been less than 56 paise per piece; (iii) The Collector examined the facts of this case in the light of the judgment of M/s Glaxo Laboratories India Pvt. Ltd. v. A.V. Venkateswaran (no citation). He agreed that the invoice is an important piece of evidence to determine what the real value is, but he also noted the contents of the judgment to the effect that the piece of evidence may be discarded if the authorities take a view that it is not a genuine document or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the impugned importation at similar prices, it is difficult to sustain an order which upholds a finding of undervaluation in respect of the imported consignment. The evidence of the other importation s was not considered by the Board. No acceptable evidence is recorded to prove that the importers own invoice filed before the Customs is unreliable. We also note that no penalty has been imposed on the appellants though according to the Collector s finding the value of the goods imported has not been declared correctly. There is no confiscation either. 12. But these two are incidental factors. On consideration of all the circumstances of the matter, we are of the opinion that the department has not proved that the impugned goods were undervalued. The Board s orders observed, inter alia that even if the appellants were fortunate to get the goods at a price less than the price at which these are sold in the ordinary course of international trade, they could not claim that as the basis of assessment of Customs Duty . The appellants plea that these goods were not purchased at a concessional price but were purchased at the prevailing price has not been disproved. 13. For these r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14(a) or the provision as a whole, notwithstanding, perhaps, the intent of doing away with it to bring the provisions more in accord with the provisions of GATT; (iii) obviously, the invoice price or the price at which the exporter sells cannot be the deemed value both in terms of the Rules framed under clause (b) of S. 14 as well as clause (a) thereof, for the simple reason that clauses (a) and (b) of S. 14 are mutually exclusive; (iv) to put it differently - it is only if the deemed value is not ascertainable under clause (a) of S. 14 that the Rules framed under clause (b) for the nearest ascertainable equivalent become applicable. The Rules speak of the value at which such goods or comparable goods are sold or offered for sale to other buyers in India or export price outside India, [Rule 3(a) (b)], i.e., the exporter s price in India or outside. It cannot, in the circumstances be that clause (a) of S. 14 is also speaking of the exporter s price or his invoice price. A construction to the contrary renders the alternative or residuary applicability of clause (b) meaningless; (v) indeed, S. 14(a) does not speak of the price at which the exporter sells or offers for sale ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but postulates also a connected relation. For instance, it has been held that the words debts due to the bankrupt in the course of his trade in S. 15(5), English Bankruptcy Act, 1869, do not extend to all debts due to the bankrupt during the period of his trading but include only debts connected with the trade [See In re Pryce - Exparte Rensburg - (1877) 4 Chi. D 865 (c) and Williams on Bankruptcy - 16th Edition - p.307]. A sale in the course of export out of the country should similarly be understood in the context of clause (1)(b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. It is farfetched to deduce from the said expression any thing resembling on invoice price or an export price and conclude that the market price at the time and place of importation is of no relevance whatever; (viii) this is not to say that the invoice price becomes altogether irrelevant. It furnishes the basis in terms of rules 4(a), 5, 6 and 8 of the Rules. Except for this, it is not relevant for the ascertainment of the assessable value in terms of S. 14(a) - i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of import or any other particulars of the imports alleged to have been assessed to lesser value. And yet, it is urged that the Appellant had produced evidence of other imports at Delhi, when the goods were said to have been assessed to a lesser value. If the market rate was not proved by adducing appropriate evidence, so also were the alleged clearances. One can only ask oneself if it was evidence and even if it were, to what effect? A determination of the assessable value that could be proved to be wrong, unrelated, as it is, to the market price at the time and place of importation of which only S. 14(a) speaks, cannot conclude the issue and preclude a correct determination of the assessable value on a true construction and application of S. 14(a). It is not as if the Revenue is stuck with such clearances, if any, and are to be restrained for all time from a determination of the assessable value in accord with the provisions of S. 14. There is no estoppel against law. 18. I, reiterate, therefore, that this is pre-eminently a matter which is to be remanded for a de novo adjudication. In such adjudication, it will be possible for either party to adduce evidence of the market rate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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