9911796707
TMI Blog1989 (9) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14 (1) (b) of the Customs Act, 1962 and also further held that the import against the licence produced was unauthorised, ordering confiscation of the goods imported under Section 111(d) and 111(m) of the Customs Act, 1962 levying a fine in lieu of confiscation of Rs. 1,00,000/-. A penalty of Rs. 25,000/- was also imposed on the appellants under Section 112 of the Customs Act, 1962. The facts in brief are that the appellants imported in September, 1987, one unit second hand stone edge cutting machine for which they declared CIF value of Rs. 35,000/- and also produced a Customs Clearance Permit over the same amount. They also made a further declaration that the machine had been supplied to them from Japan for use by the appellants and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hand edge cutting machine imported by them with a circular saw machine with sophisticated electric control system produced by a different manufacturer of Japan. He also questioned the mode of allowing depreciation. He further pointed out that no expert opinion of any technician has been obtained to say that the machines whose values have been by the department have, in fact, comparable. He further submitted that the appellants have furnished evidence of the first sale of the machine by the original manufacturer to a stone factory in Japan and also documentary evidence of the purchase of this second hand machine by the present suppliers, namely. FSUBOSAKA DERA Temple, Japan. They had further furnished a Chartered Engineer's certificate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The learned SDR also contended that the comparison of the value was rightly made with machines having similar functional design and was, therefore, valid. In reply, the learned counsel pointed out that the genuineness of the invoice was never questioned by the department. The learned counsel further referred to the affidavit of the Priest of the temple and submitted further that all particulars have been disclosed by them to the licensing authorities while obtaining the Customs Clearance Permit. 4. We have carefully considered the submissions made by both the sides. The machine imported in this case is admittedly second hand reconditioned one. The appellants produced the invoice for it in which it had been described as 1979 Model secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section as above that assessable value has to be determined. Hence the submission in this regard is unacceptable. The department has, on The other hand, sought to determine the value of the machine on the basis of Section 14 (1)(b) as they found provisions of 14 (1)(a) inapplicable to Customs Valuation Rules, 1963 under Rule 8 (latest judgement) and had taken the value of a grinding and circular saw machine Type GCR from Japan when impelled as new and with due adjustment towards depreciation. We have to examine the question whether this machine is comparable with the one imported by the appellants, for it is seen that even for determination of value under Rule 3 of Valuation Rules, it is necessary to eliminate any arbitrariness. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the machine manufactured in 1979 had been reconditioned at a cost of U.S. $ 300, has a residual life of 10 years and would be worth Rs. 1 lakh CIF in India if purchased new. There is also on record an affidavit by the Superintendent Priest of the donor Temple sworn on 10-11-1985 in Japan to the effect that the cost of the machine is U.S. $ 3180 in Japan. There is nothing on record questioning the authenticity of these documents. Therefore, we find that in respect of the value of the machine besides the value declared in the Bill of Entry, there are two other indications of value produced by the appellants themselves, namely, the value as certified by the Chartered Engineer, and also the value as sworn by the Superintendent Priest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues can be adopted, namely, the declared value of Rs. 35,000/-, the value of Rs. 1 lakh as certified by the Chartered Engineer; and the value of U.S. $ 3180 as sworn by the Superintendent Priest of the temple. To this highest of value the amount of freight and insurance have to be added. In regard to the freight and insurance amount the same should be taken as already indicated in the Show Cause Notice to the appellants. Similarly, as in above cited case, since there has been no foreign exchange remittance and no case of deliberate under-invoicing has been made out on the basis of the evidence on record, the confiscation of the goods is not justified and the order of confiscation and fine on the goods is set aside, as also the penalty on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
