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TMI Blog1988 (5) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... essages exchanged between Shri S.N. Goenka of M/s. Krishna Co. and M/s. For Export. M/s. For Export has agreed to supply M/s. Krishna Co. the goods at the price of US $ 3.69 CIF each provided M/s. Krishna Co. receives a commission of US 20 Cents per piece from M/s. For Export. From this correspondence the department tentatively formed an opinion that although the appellants had declared that no indenting Agent s commission is payable the price of US $ 3.69 CIF per piece is subject to M/s. Krishna Co. receiving the commission of US 20 Cents per piece. Hence the price per piece would be US $ 3.89 CIF (US $ 3.69 + 0.20) per piece. As regards the import of the subject goods against the licences produced by the appellants the authorities concerned formed the tentative view that the subject goods are not covered under the said licence. As a sequel thereof a show cause notice calling upon the appellants to show cause as to why the imported goods be not confiscated and penalty be not imposed was issued. In reply while abjuring their guilt the appellants contended that the value declared by them be accepted and the subject goods be assessed under Heading 84.63(1) of the Customs Tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector of Customs, Bombay, 1985 (21) ELT 140 (Tribunal) = 1985 ECR 646 (CEGAT) - wherein it was held that burden of proving the charge of under-valuation lies on the department who must produce supporting evidence. (2) Glaxo Laboratories v. A. V. Venkateswaran AIR 1959 Bom. 372 - wherein it was, inter alia held that the invoice is an important piece of evidence to determine what the value is. (3) Maheshwari Trading Corpn. v. Collector of Customs, 1987 (29) ELT 739 (Tribunal) - wherein it was held that 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 Section 14 as well as Clause (a) thereof, for the simple reason that Clauses (a) and (b) of Section 14 are mutually exclusive - See Para 14(iii). In reply Shri J. Gopinath, learned SDR submitted that both the authorities below for the reasons mentioned in the two Orders correctly included the commission in the value and particularly drew our attention to the two telex messages exchanged between Shri S.N. Goenka of M/s. Krishna Co. and M/s. For Export to show that Krishna Co. wrote to the supplier that invoice be prepared after deducting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EACH C.I.F. BOMBAY BY SEA FRT . It is addressed to Shri Goenka who is according to the appellants own letter dated 17-9-1982 is one of the partners of the importing firm. Besides the reply to the show cause notice filed by the appellants is also signed by the importers and counter-signed by M/s. Krishna Co. This reply, inter alia mentions that the suppliers had accepted a GIF price of US $ 3.69 each Bombay by sea freight and in addition agreed to allow M/s. Krishna Co. a commission of US 20 Cents per unit; (iii) From the record we find that before the adjudicating authority, that is to say before Deputy Collector of Customs, written submissions were made by the appellants in which they admitted as follows :- 2. Valuation. As a first trial order the supplier in his telex dated 7-1-1982, agreed (for 3000 pieces) for a rate of 3.69 $ per piece, and this price includes a commission of 20 cents per unit as commission. In this case as both Hindustan Equipment Corpn. and Krishna Co. are associate firms (the sole proprietor of the former firm has a 50% partnership share in the latter firm) M/s. Krishna Co. requested the supplier to invoice the goods on nett basis after deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the show cause notice and all through the appellants contested the adjudication proceedings with reference to the said two telex messages. In the case of Devidayal Rolling and Refineries Pvt. Ltd. v. A.V. Borkar, 1983 ELT 338 the Hon ble Bombay High Court held that even the notice does not describe it as a show cause notice, but the contents thereof makes the recipient aware and conscious of the position, he cannot be permitted to raise a technical argument that a notice was bad in law. Similar view was taken by this Tribunal in the case of Collector of Central Excise v. Star Paper Mills Ltd., 1986 (26) ELT 81. Thus under these circumstances mere non-mention of the Customs Valuation Rules is in the Show Cause Notice of no consequence. Thus we have no hesitation in holding that the valuation made by the authorities below was in accordance with law. 7. Shri Rangaswamy also contended that the goods imported are Synchroniser Cones No. 322-262 for Mercedes Benz Model OH 321. From the specifications for the parts imported it would appear that the imported goods has been classified under the general description Synchronish Transmission . He further submitted that from the specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 975. Tariff Heading 87.04/06 falls under Section XVII and reads as follows:- 87.04/06: Chasis fitted with engines, bodies (including cabs) and parts and accessories of the motor vehicles falling within Heading No. 87.01,87.02 or 87.03 (1) Not elsewhere specified. (2) Parts designed for the articles covered by sub-heading No. (1) of Heading No. 87.01 and sub-heading No. (3) of Heading No. 87.02." Interpreting these two Headings this Tribunal held in the case of Mahindra and Mahindra Ltd. v. Collector of Customs, Bombay, (supra) that transmission Synchroniser Blocks Rings are classifiable under Heading 87.04/06(1) of the Customs Tariff Act, 1975 as parts of Motor Vehicles not elsewhere specified and not as parts of Engine and Motor under Heading 84.63. It appears from the record that before the adjudicating authority the appellants in their submissions dated 14-10-1982 had stated that the articles imported viz. Synchroniser Cones is a part of Daimler Benz Engine OM 312/321 fitted on P H Shovel as well as Tata Mercedes Trucks . From this it is clear that the goods imported are part of the transmission system of Motor Vehicles and not an internal part of an Engine nor a clu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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