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TMI Blog1992 (3) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... Kg. CIF (equal to Rs. 326/- and Rs. 333/-) for Polyurethane Bands type MB 4025 and MB 5025. However, the Department decided to load the declared value on the basis of an adjudication order passed by the Collector, Air Cargo Complex, Bombay fixing the per Kg. price of identical gods at Rs. 200/- CIF. The order of the adjudicating authority was set aside by the Tribunal and the matter remanded for de novo adjudication. Reliance upon the adjudication order of the Collector, Bombay was ruled out, and the Department was directed to supply copies of all documents to the importers. Aggrieved by the order passed after remand confiscating the goods for mis-declaration, unauthorised importation and undervaluation (holding that they are to be assessed as articles composed of Polyurethane type of polymer) the appellants have preferred the above appeal. 3. Appeal No. C/1540/89-C This appeal covers import of one consignment of 600 Kgs. of synthetic rubber tape at the price of HK $ 23.40 per Kg. CIF. On physical and chemical examination of the goods, charges of misdeclaration, description and value were laid against the importer, who waived show cause notice and personal hearing and requested a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sea MB-5025) Fluorescent (MB-5025F/ - @ $ 22.50 per KG CIF by sea MB-5025F) If you prefer C F prices, you may reduce 1% from above prices respectively. Please once study above and try best to realise orders on our MOBILON coloured bands. We are anxiously awaiting further good news very soon, and wish to remain. Yours very truly Sd/- Sun Fashion Corp. Nov. 21,1986 Your letter dated Nov/14,1986 MOHILON BANDS Mohilon Polyurethane Small Colour Bands Colour available: 1. Standard colour : White yellow, pink, red, blue and black 2. Fluorescent colour : Pink, Red, Yellow, Orange and Green Prices: 1. Standard colour @ $ 19.45 per Kg. 2. Fluorescent colour @ $ 23.00 per Kg. Specification AHT No. Width Thickness Circumference Yield per Kg. MB-4025 Abt. 2mm abt.0.5mm Abt. 8 cm Abt. 9000 pcs. MB-4025F Abt.2mm Abt.0.5mm Abt. 8 cm Abt. 9000 pcs MB-5025F Abt. 2mm Abt. 0.5 mm Abt. 10 cm Abt. 7200 pcs. MB-5025 Abt. 2mm Abt. 0.5 mm Abt. 10 cm Abt. 7200 pcs. Packing : 1 Kg. net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all different from those applied to the old ones. We trust that the foregoing explanation will make you fully understand the difference in the qualities and the prices between the articles mentioned in our old letter and the currently selling new item. We sincerely hope that your interest in this particular product will continuously remain lively. Yours faithfully, Sd/- Sun Fashion Corp." (e) The letter dated 11-7-1989 of M/s. Sun Fashion Corporation on whose quotations the Department has relied, quotes the price of MB 4024 as US $ 240 and MB 4025 as US $ 3 per kg. CIF Calcutta (page 73) (f) M/s. Tomito Corporation, Japan who are the selling agents for India have confirmed the price of Sun Fashion Corporation indicated at Sl. No. (e) above, by their letter dated 29-8-1989. (g) The importations by the two appellants confirm each other as the import prices of both are the same. (h) The appellants made a reference to M/s. Sun Fashion Corporation and obtained a reply on 11-7-1989 clarifying that Sun Fashion Corporation was not available for direct business for India markets and the appellants in C/436/90-C were directed to contact M/s. Tomito Corporation directly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the charge of undervaluation is upon the Customs Department and the evidence relied upon by them as contained in the adjudication order was not at all sufficient to discharge that onus. The Tribunal held that there was no cogent evidence on record to prove any relationship between the appellants and the foreign supplier (in these appeals there is no evidence to show that there is any relationship between the appellants and the suppliers or any extra consideration is involved). 9. In the light of the above discussion we hold that the charge of misdeclaration of value not having been established by the Customs authorities and having regard to the evidence produced by the appellants, cannot be sustained. Therefore, the invoice price of the goods is to be accepted as reflecting the correct price. 9A. Re : description of the goods, the allegation of the Department that the goods are bands of plastics and not of rubber is based upon chemical test of the samples. The samples were tested in the Calcutta National Test House which reported that the sample is in the form of black coloured band width 1.5 cm. and thickness 0.39 mm. It is composed essentially of polyurethane type of pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following paragraphs. 2. Statutory Note 4 to Chapter 40 of the First Schedule to the Customs Tariff Act, 1975 reads as follows : 4. In Note 1 to this Chapter and in Heading No. 40.02, the expression synthetic rubber" applies to : a. Unsaturated synthetic substances which can be irreversibly trans formed by vulcanisation with sulphur into non-thermoplastic substances which, at a temperature between 18 C and 29 C, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of five minutes, to a length not greater than one and half times their original length. For the purposes of this test, substances necessary for the cross-linking, such as vulcanising activators or accelerators, may be added; the presence of substances as provided for by Note 5(b)(ii) and (iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as extenders, plasticisers and fillers, is not permitted; b. Thioplasts (TM); and c. Natural rubber modified by grafting or mixing with plastics, depolymerised natural rubber, mixtures of unsaturated synthetic sub stanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be carried out on a sample which does not contain such materials or from which such materials have been removed. In the case of vulcanised rubber articles, which cannot be tested as such, it is necessary to obtain a sample of the unvulcanised raw material from which the articles are made, in order to perform the test. No test is, however, required for thioplasts which are regarded as synthetic rubber by definition. (ii) Unsaturated synthetic substances, which meet the requirements concerning vulcanisation, elongation and recovery as laid down in Part (a) of the Note. For the purposes of the test, substances necessary for the cross-linking, such as vulcanising activators, accelerators or retarders may be added. The presence of small amounts of breakdown products of emulsifiers [Note 5(b)(ii)] and very small amounts of the special purpose activities mentioned in Note 5(b)(iii) is also permitted. However, the presence of any substances not necessary for the cross-linking, such as pigments (other than those added solely for the purpose of identification), plasticisers, extenders, fillers, reinforcing agents, organic solvents is not permitted. Thus, the presence of mineral oil or dyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Chapter 40 of the Customs Tariff Schedule, at the appellants expense. 7. In view of the fact that the goods have been under detention for a long time, we expect the Collector to act with utmost expedition in the matter of drawal of samples and to make arrangements for the tests with the National Test House expeditiously and forward copies of the test reports immediately on their receipt. We trust that the test report will be available to the Bench within four weeks from date. The matters are listed for mention and further arguments if any. To come up on 8-3-1991 at 10.15 AM. The representative samples may also be produced on 8-3-1991 for perusal of the Bench." 10. Upon issue of this order, the National Test House by its letter dated 22-3-1991 confirmed that it is equipped to carry out physical tests of elongation and recovery. By miscellaneous Order No. 148/91-C dated 10-6-1991, the National Test House was directed to carry out the test of elongation and recovery at the specified temperature in terms of Note 4 to Chapter 40. The Test House if equipped to do so, was also directed to determine the presence of substances not necessary for cross-linking such as pigments, (o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to clear the goods under an REP licence which was not accepted by the Customs Department and subsequently the importers claimed that as the goods are covered by Appendix 3 Part 3 they may be permitted to clear under flexibility clause to cover import of the goods falling under Sl. No. 396 and 587A of Appendix 3 Part A 1988-91 Import Policy. Sl. No. 587A includes Plastic extruded/moulded/fabricated components or products. The term elastic bands is not specifically described any where in Appendix 3 Part A. Moreover the title of Appendix 3 Part A covers raw materials, components, consumables, tools and spares and the elastic bands imported by the appellants are not covered under any of these Headings. The goods in question are elastic rubber bands in 5 or 6 different colours and these are sold in market in packets of 1 dozen each. These are used by ladies for tying their hair i.e. they are consumable items. We see no reason to differ with the finding of the adjudicating authority that the goods are consumer goods falling under Sl. No. 145 Appendix 2 Part B and, therefore, in the absence of a valid licence the goods have been imported unauthorisedly, in contravention of Section 11 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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