9911796707
TMI Blog1992 (5) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the said serial number only those items are permitted to be imported by all persons which are used in : (i) Printing Machinery (ii) Machine tools for cutting, forming, abrading and polishing, metals, wood, glass and plastic including any standard of ancillary equipment; (iii) Cinematographic equipment. 1.2 The case was adjudicated by the Collector of Customs, Bombay vide his order No. S/10-87/88-VA (Mc. 13/88) dt. 14-7-1988 confiscating the bearings under Sections 111(d) and 111(m) of the Customs Act. The importers were, however, given an option to redeem the goods on payment of a fine of Rs. 10 lakhs; value of the goods was enhanced from Rs. 150,000/- to Rs. 1,79,631.76 per piece, as alleged in the show cause notice. The said Collector, however, did not impose any penalty under Section 112 of the Customs Act having taken a lenient view in the facts and circumstances of the case. 1.3 The appellant, in appeal before the Tribunal, succeeded in getting the matter remanded to the Collector of Customs, Bombay with the direction that the letter dated 20-1-1987 had not been read by the Collector in conjunction with letter dated 28-1-1987 from the appellants to the supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been supplied to any customer in India either before the said contract or subsequent thereto. The trade representative further urged the Collector of Customs, Bombay, vide its letter dated 23-12-1988 that the price list being relied upon by the department in the case against the appellants reserves the right to the suppliers to conclude contracts at negotiated prices on a case to case basis. While reiterating the aforesaid, representative urged the Collector of Customs that the prices given in the invoice dated 18-12-1987 should be accepted. Vide its letter April 26, 1989, the trade representative informed the appellants on a query from them that these very goods were offered to many other parties in Asia around the same price of Indian rupees 50,000 per piece against the impugned order of 10 pieces. 2.1 The learned advocate has also urged that the reliance placed by the department on the price list dated 21-6-1986 is not correct inasmuch as the letter dated 11-8-1986 from the suppliers agents to the Customs authorities clearly states that the suppliers reserve the right to conclude the contracts at negotiated c.i.f. prices with the buyers on a case to case basis. In the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as follows :- (1) 1990 (48) E.L.T. 421 - Wax and Wax Products v. C.C. (2) 1991 (53) E.L.T. 122 - Peakcraft v. C.C. (3) 1988 (36) E.L.T. 48 (Bom.) Gulabrai D. Parekh v. UOI and Others. 2.4 As regards the heavy discounts in the trade and commerce of bearings, learned JDR has submitted that the price list itself does not indicate any discount schedule which is normally a part of the price list. As regards the examples of heavy discounts pointed out by the learned advocate, the learned DR for the Revenue has urged that these are all for standard bearings which have equivalence with SKF bearings having specific dimensions. In the instant case, the goods imported are non-standard bearings meant for specific machines. There is no question of any standard discount, high or low, in respect of these goods. 3. We have carefully considered the pleas advanced on both sides. So far as the question of valuation of goods is concerned, on a consideration of the entire evidence and the arguments submitted from both sides, we are inclined to agree with the department that the prices of the goods imported is not what is stated in the invoice and consequently in the bill of entry. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese prices are not available for other importers in India for the said goods. It is, therefore, clear that the price of the goods in the instant case has been strongly influenced by consideration other than that of sale in the present case. It is for the purpose of promoting future sales in the country that specially reduced price has been given by the suppliers to the appellants. In the light of 20th January, 1987 letter, Agent s letter dated 11-8-1986 stating that the suppliers reserved to themselves the right to negotiate the price on case to case basis loses its significance. That right, obviously has been exercised for considerations other than that of sale of the instant goods. That being so, the price is not acceptable under Section 14 of the Customs Act. The cases relied upon by the learned advocate are distinguishable on facts. Valuation based on a price list is different from that of mere quotation. The cases relied upon by the learned advocate do not refer to the price list as is available in this case. On the other hand, department s reliance on the three cases, mentioned supra, is well taken. We are of the view that having regard to the evidence on record and the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es v. CCE}. The learned DR, on the other hand, states that in remand the matter was at large and therefore, the adjudicating authority was competent to impose a penalty. We have considered this plea of the appellants and we find sufficient force in that plea. We, therefore, set aside the penalty of Rs. 50,000/- imposed in the impugned order. 3.3 As a last plea, the learned advocate has submitted that Customs authorities be directed to issue a detention certificate because a heavy demurrage of Rs. 25 lakhs is involved herein for no fault of the appellants. This is a matter to be considered by the Customs authorities themselves. The Tribunal does not normally come into the picture so far as the detention certificate is concerned because there is no provision in the Customs Act which allows granting of detention certificate. Nevertheless, we are of the view that the appellants request be considered sympathetically inasmuch as there has been a delay in readjudication proceedings despite an observation of the Tribunal that the Collector is expected to decide the case within four weeks of receipt of the Tribunal s Order No. 168/89-A dated 2-5-1989. 4. Appeal is disposed of in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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