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TMI Blog1991 (6) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ntendent on 10-8-1987 and the goods were examined on 19-8-1987 and samples were drawn by the Inspector in the presence of the Customs House Agents (CHA) and the appellants, who were M/s. Om International, New Delhi and the importer s representative. After examination, the papers and the samples were presented before the Assessing Officer on 21-8-1987. Meanwhile, the CHA submitted a letter dated 21-8-1987 requesting that the yellow into - Bond bill of entry may be allowed to be converted into home consumption white bill of entry which was allowed by the Assistant Collector, ICD on the following day and the white bill of entry dated 22-8-1987 was filed. On 24-8-1987, the Assistant Collector, ICD received information that the goods declared as decorative paper for laminates were not as per declaration. The Assistant Collector, therefore, personally visited the CFS on the same day and found that the goods were different from the samples received earlier from the ICD. Thereafter, 100% examination of the goods was ordered by the Assistant Collector (ICD) on 25-8-1987 which examination was carried out on 27-8-1987 in the presence of the CHA, Proprietor of M/s. Mirah Decor, the Superintend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... samples actually received at ICD and the one actually imported by him and torn from the rolls of the consignments were recovered. In his statement on 7-9-1987, Shri Goenka admitted that the two pieces were wall paper taken from the rolls in his consignment imported and that the other pieces were that of Decorative Paper for Laminates, which had been placed in the sealed cover containing samples drawn on 19-8-1987 that he deals with wall paper and other items. Proceedings were initiated by the Department against the appellants also on the question of valuation of the consignment based on certain market enquiries and similar import at Cochin Port and a show cause notice was issued to the appellants for mis-declaration of value and description of the goods and for importing the goods without valid licence and the CHA of the appellants were also proceeded against, by the issue of a show cause notice for the purpose dated 16-1-1988. The appellants submitted a reply thereto and subsequently, the Customs House issued an amendment to the show cause notice on 29-8-1988 seeking to amend paras 21 and 22 of the show cause notice issued on 16-1-1988. This was for the purposes of bringing on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Control. One of the Panchas has even given an affidavit regarding the search of the car which was against the Department. Regarding the change of samples, which was under the Customs Control, no enquiry was conducted, no one s statement was recorded and the Department has not discharged the burden cast on it in this regard. When the examination of the goods took place, the appellants say is that only the departmental officers were present. Even the labels indicating the goods as wall paper were not found on all the goods imported, but only on some of the rolls. It was also submitted that the appellants could not have gained any advantage by changing samples because the goods were in the Customs Control. The goods imported is decorative paper for laminates and is used as top layer in lamination. It is imported as such and the end-product as wall paper, is not important for assessment at the point of import. The appellants had submitted samples of the decorative paper for laminates used as top layer in a laminate before the Additional Collector which that authority ought to have got tested or expert opinion obtained thereof, but this has not been done. The appellants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices at pages 104 to 106 of the Paper Book (I) in this regard. A further submission was also made as contained in the Misc. Application that the Additional Collector should have considered the valuation of the goods in terms of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 being the transaction value method and that as the new Valuation Rules have come into force on 16-1-1988, the same being procedural in nature were applicable to all the pending matters or pending proceedings. As the transaction value has not been disputed by the Department, the same should be accepted as assessable value for the goods. Reliance was also placed in this regard in the case of Biju Patnaik v. Wealth-tax Officer -1983 (3) ITD 693. The Department ought to have furnished the price of a comparable import instead of a quotation for which reliance was placed on 1990 (49) E.L.T. 293 (Tri.) = 1990 Vol. 31 ECR 150 (Tri.) - Collector of Customs (Bom.) v. Indian Photographic Co. It was further urged that without establishing any mutuality of interests between the supplier and importer the assessable value cannot be increased. Further relying upon the case law reported in 1990 (46) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to the present import which took place in 1987. The Ld. S.D.R. also argued that the amending show cause notice cannot be said to have deleted the proposal for confiscation and imposition of penalty if the original show cause notice and the amending show cause notice are read as a whole. As regards the other arguments of the appellants about the statements obtained from the appellants, being under duress, cannot be taken under evidence, the Ld. S.D.R. submitted that statements are recorded under Section 108 of the Customs Act and urged that Customs Officers are not police officers. In the circumstances, the personal penalty on the appellants and confiscation of the goods is deleted. The Ld. Counsel in reply, contended that the reliance on mere quotation without any particulars of quality, mode of payment, etc. cannot be valid for enhancing assessable value and cited the case of Tirupathi Plastics v. Collector of Customs reported in 1989 (40) E.L.T. 118 in which the similar plea before the Supreme Court was dismissed. The appellants had also produced the value of similar import which was, in fact, at price lower than that declared by the appellants. Therefore, the declared valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly satisfy human needs without further processing; it will include consumer durables also. See para 7 of ITC Policy 1985-88 : As such, the goods fall under Sl. No. 121 Appendix 2B of ITC Policy 1985-88 which covers all forms of consumer goods. Therefore, import licence produced for decorative paper for laminates issued under Appendix 17 against product group C 11.1 has rightly been held to be not valid for the goods imported. The confiscation of the goods is, therefore, maintainable. 6. The controversy regarding the alleged substitution of the sample drawn earlier from the consignment on 19-9-1988 falls for consideration only in the context of whether the goods were deliberately mis-declared, and in this connection, the issue whether the goods were decorative paper for laminate or whether they are wall paper having been determined by a 100% examination of the goods and uncontroverted drawal of samples, the question will survive at best for determining the quantum of penalty. On this aspect the fact that the Customs House had in deciding the issue also consulted the DGTD to whom a sample was sent, as also the fact that Sh. Goenka, Proprietor of the appellants had said that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hongkong and not the place of importation, and that no reliance can be placed on such a quotation to discard the invoice value of the goods furnished by the appellants which was claimed to reflect the correct value and that the price quotation relied upon was not sufficient to discharge the onus cast on Department to prove the correct value. The Supreme Court, however, observed that We have considered the submissions made by Ld. Counsel for the parties, Sec. 14 of the Act provides for valuation of goods for the purpose of assessment. Sec. 14(1) which is relevant for our purposes reads as under : 14. Valuation of goods for purposes of assessment: (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be 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, where the seller and the buyer have no interest in the business of each other and the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Europea Wall Coverings of Singapore remains unrebutted. The ratio of the Supreme Court decision is, therefore, applicable to the facts of the case and, therefore, the enhancement of the assessable value is well founded. The plea that transaction value of the goods as per Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 should have been applied, is unacceptable in view of the fact that (i) the proviso to Sec. 14(l)(a) lays down that the price shall be calculated with reference to rate of exchange as in force on the date of filing of Bill of Entry for home consumption which in this case was on 22-8-1987 and (ii) Section 15 of Customs Act, 1962 governs date for determination of rate of duty and valuation which lays down that rate of duty and tariff valuation shall be the one prevailing on the date of presentation of Bill of Entry for home consumption. Therefore, transaction value as contained in the Valuation Rules of 1988 cannot be applied to a Bill of Entry for home consumption presented in 1987. Certain arguments have been put forth regarding the show cause notice issued. On examining these, it is found that it cannot be accepted that the amendment to th ..... 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