9911796707
TMI Blog1991 (9) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... m/hr Capacity. (b) 1 No. High Pressure expansion Engine with Electrical Motor and Cooling arrangement. (c) 1 No. Product Compressor for Oxygen 35 Cu. m/hr. Capacity. (d) 1 No. High Pressure Air Drier Battery. They filed a bill of entry for clearance of the said goods under cover of invoice No. 83/PG-45 dated 18-5-1983 declaring the value totalling to 14,840/- C.I.F. Calcutta. They also claimed that the goods were covered by OGL as per Appendix 10, Sl. No. 1 of ITC Policy AM 83 as components for manufacture of Air Separation Plant at their Factory. The Collector who adjudicated the proceedings based upon the examination report of the Machinery Export Appraiser and report of M/s. A.G.A. Industrial Gases Ltd., U.K. observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He said that the goods arrived at port of Calcutta on 29-6-1983 and the bill of entry was filed on 18-7-1983. The goods were lying in the docks for a period of about 3 months from 29-6-1983 to 19-9-1983 before these were examined by the Appraiser in the docks and during this period suffered extensive rusting, damage and deterioration, dents and bents due to mishandling and open storage. The examination report of Engineer specifies that these goods were components and found lying unused and even the examination report of the Appraiser of Custom House never talk of any of the items being used except in regard to the Compressor. Even in case of Compressor he had observed, this appears to be used but without examining the internal condition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Import Policy as they did not appear in Appendix 2 of Import Policy and hence the importation was unauthorised. He contended that though on the face of it, these items can be construed as components for the manufacture of Air Separation Plant, these goods do not qualify as components for claiming OGL benefit under Import Policy since the appellants are not the manufacturers of the Air Separation Plant. He also said that the sister concern M/s. Asiatic Oxygen and Acetylene Company imported similar goods as capital goods against their licence. 6. The claim of the appellants is that the goods are covered under OGL Appendix 10 Serial No. 1 of ITC Policy 82-83. As per Appendix 10(1) of the said Policy, raw materials, components and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, accordingly, the appellants succeed on this issue. 8. The next point at issue is the determination of the value of the goods. The contention of the appellants is that the value shown in the invoice is the correct sale price without any special or extraneous consideration or based on special relationship and the same should be accepted for assessment purpose under Section 14(1)(a) of the Customs Act, 1962. Shri J.S. Agarwal contended that burden lies on the Department to prove under-valuation and the Department has not adduced any evidence to show that the goods identical to those imported by the appellants were being ordinarily sold or offered for sale for delivery at the time and place of importation in the course of International t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were supplied not from the manufacturer but from the Supplier. He said that determination of the value based on the certificate given by the independent authority was just and allowing 50% depreciation towards condition of the machinery was more reasonable. He said that under Section 14(1)(a) of the Customs Act the value for purpose of assessment of duty would be the deemed value as provided for under the said Section, even if the invoice price is proved to be the true price as agreed between the parties relying upon the ratio of the decisions in the following cases :- 1. Sharp Business Machines Pvt. Ltd. v. Collector of Customs - 1990 (49) E.L.T. 640 (S.C.). 2. Automotive Enterprises v. Collector of Customs, Bombay - 1985 (22) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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