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TMI Blog1992 (3) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments were shipped in terms of invoice No. 67/88 to 81/88 dated 30-4-1988 at the rate of US $ 825 per MT CIF. The appellants acquired eight REP licences issued under Appendix 17/AM-85-88 Policy Book. These licences are dated 29-4-1988, 21-4-1988, 16-3-1988. These licences are valid for the import of the impugned goods. The Bank of India, Singapore by their letter dated 28-5-1988 forwarded the original negotiable document to SBI Ahmedabad along with original bills of lading and they have retired the documents between 13-6-1988 to 7-10-1988. Since the department refused to recognise the appellants as the consignee importers on the ground that the import manifest did not contain the name of the appellants, they filed a writ petition C.S.A. No. 5804/1988 in the High Court of Gujarat. The Gujarat High Court by an order dated 30-9-1988 directed the Steamer Agents M/s. J.M. Bakshi Co. to apply for amendment of the Import Manifest and thereafter, the proper officer should decide the same. On 4-10-1988, M/s. J.M. Bakshi Co. made an application for amendment of the manifest which was rejected by the Assistant Collector. The said order of the Assistant Collector was brought on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was premature on the date on which the Collector Rajkot passed the impugned orders of his has now become mature pursuant to our present order. Hence the orders of the Collector, Rajkot both these petitions do not survive any further so far as maturity of the adjudication proceedings is concerned. We, therefore, quash and set aside the aforesaid orders of the Collector, Rajkot with a direction to him to proceed with adjudication proceedings pursuant to the show cause notice dated 15-12-1988 and after hearing the petitioners and permitting them to lead whatever evidence they want to lead in support of their defence and also permitting the department to produce their evidence to finalise the adjudication proceedings. Thereafter, the Collector adjudicated the matter and passed the impugned order. 2. From the judgment of the Gujarat High Court, two aspects are clear : (1) that the appellants have legally imported the goods; (2) that there is no manipulation of documents. The only question that remains to be considered and was considered by the Collector is regarding valuation. 3. The Collector held that in view of the judgment of the Gujarat High Court which has become fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods at the price US $ 440 per MT. The tonne US dollars difference is on account of adjustment due to difference in Port of unloading as in the case of M/s. Pandya Plastics (P) Ltd. goods had been cleared through Bombay Port whereas the appellants have cleared the goods through Kandla Port. The Collector confiscated the goods under Section 111(m) of the Customs Act, 1962 and imposed a redemption fine. Sl. No. Bill of Entry No. Date Name of the Importer Quantity of HDPE involved Quantym of redemption fine 1. 5360/1-12-88 (Home Consumption M/s. Elite Packaging Industries 16.675 Rs. 50,000/- Rupees fifty thousand only 2. 5361/2-12-88(Into Bond) -Do- 241.725 Rs. 8,00,000/- Rupees eight lakhs) 3. 5362/2-12-88 (Home Consumption) M/s. Eko Packaging Industries 16.675 Rs. 50,000/- (Rupees fifty thousand only) 4. 5363/2-12-88 (Into Bond) -Do- 224.650 Rs. 7,00,000/- (Rupees seven lakhs only). Total - 499.725 Rs. 16,00,000/- (Rupees sixteen lakhs only). He also imposed penalties of Rs. 4 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract are not confirmed documents. Therefore, the Collector is right in holding that there is no correlation between the invoice and the imported goods. He also submitted that reference made by the Collector to the report of Platts International Petro-Chemical is justified as it is in the nature of a price list. He also pointed out that the prices declared by the appellants is lower by 50%. Therefore, the price cannot be accepted. 11. Shri Nankani in reply submitted that since the High Court held that there is no basis for the charge that the appellants have manipulated the documents and since the Collector also dropped the said charge on the basis of the judgment of the High Court the Collector should have accepted the price indicated in the three documents namely, the covering letter, sale confirmation letter and the invoice. 12. Taking up the first argument of Shri Nankani, that there is correlation between the imported goods and the invoice, we may refer to the contents of invoice, covering letter and the sale confirmation letter. The invoice is dated 30-4-1988 and it refers to the description of goods as bags HDPE and the price indicated is US $ 825 per MT CIF. The total qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the grade is concerned he seems to have not disputed and therefore, we proceed on the basis that it is blow moulding grade. 14. The next question that arises for consideration is whether the transaction value is to be accepted. 15. The Collector relying on the invoice price of M/s. Pandya Plastics (P) Ltd. enhanced the value. He also relied on Rule 6 of the Customs Valuation Rules, 1988. Rule 6 incorporates Rule 5(1) (b) of the rules in itself. Therefore, in applying the transaction value of similar goods, the transaction value should be at the same commercial level and in substantially the same quantity as the goods being valued. Admittedly, the goods imported by the appellants are 500 MT whereas the imports made by M/s. Pandya Plastics is only 34 MT. Therefore, it cannot be said that the goods imported by M/s. Pandya is of similar type and therefore, the said value should be attracted for the purpose of determining the assessable value of imported goods. Consequently, the imported goods cannot be assessed on the basis of the imports of M/s. Pandya Plastics. Secondly, the Collector himself found that the goods imported are HDPE Alathon DL 5850 whereas the goods imported b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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