9911796707
TMI Blog1993 (3) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to be USK No. 4 JISC 2520 Licence No. 5614 made in Japan and manufactured by M/s. Hosokawa Seisen Co. Ltd., Japan. The goods were packed in original spools and having original packing. Each of the spools contained all the technical details of size, diameter and resistancy which ranged from 1.93 for 20 SWG to 7.71 for 26 SWG. The examination of the goods thus revealed that the goods found in the imported packages were electric resistance wire of the famous Japanese brand which was being imported regularly by several other importers. On chemical test of the goods and comparing the details indicated in the labels on the spools with particulars indicated in the manufacturer's catalogue/technical literature, it was found that the goods were quality wire of famous HSK No. 4 brand without any defect. From the catalogue it was also found that the manufacturer's sole exporting agent from Japan was M/s. Tohwa Electric Co. Ltd., Japan. On comparison of the value indicated in some contemporaneous invoices from M/s. Tohwa Electric Co. Ltd., Japan for identical goods having same specifications, it was found that the value of the goods could not be less than US $ 98/500.00 (Rs. 14,90,166.30) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spection nor submitted their reply to the show cause notice. Again time was given to inspect the documents on 1st September, 1990 and to file written submissions by 8th September, 1990 and on the request of the importers a personal hearing was fixed on 1st October, 1990. Again on importers' request it was adjourned to 10th October, 1990. The importer did not appear on that date. Another date of personal hearing was given on 24th October, 1990. The counsel for the importers requested for the fixation of the personal hearing on 15th October, 1990 at 3.00 p.m. and on 15th October, 1990 at 3.00 p.m. the importers' counsel had appeared. The importers had taken the plea that the order for the goods was placed by the importers on the basis of an advertisement appearing in Hong Kong publication which indicated the price for the resistance wire on the basis of quantity in bulk. The order was placed on 4th October, 1988. The importer had claimed the transaction at arm's length. The proforma invoice was issued in December, 1988 and the goods were received in February, 1989 and the indents relating to the invoices cited in the show cause notice were for the period July to September, 1988. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon by the appellants were rejected. The Collector in his order has relied on eight specific invoices of importation of resistance wire of HSK No. 4 brand of Japanese origin of 20, 22 and 24 SWG. These invoices were of imports effected by various Indian parties from M/s. Tohwa Electrical Company, Tokyo, Japan, who, as per evidence produced, are the sole selling agents of the Japanese manufacturers and are, therefore, authentic as regards the price for the goods. The dates indicated in seven out of eight invoices are between July and September, 1988 i.e. within a period of 3 months before or after the date 4th October, 1988 on which the orders for the goods were placed. Except for invoice No. 55926 dated 14th March, 1988, the remaining seven invoices were contemporaneous for the purpose of Rule 5 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 and the prices mentioned in seven invoices were of 20, 22 and 24 SWG in bulk quantities of 500 kgs. or more and were, therefore, in substantially the same quantity as the goods covered by the subject importation. The invoice also indicated that there was no further quantity discount so long as the orders for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty had ordered the confiscation of the goods under Section 111(d) and (m) of the Customs Act, 1962. The importer was given an option to redeem the goods on payment of a fine of Rs. 6,50,000.00 (Rupees six lakhs fifty thousand only) and a penalty of Rs. 5,00,000.00 (Rupees five lakhs only) was imposed on M/s. KP. Trading Company and the value was fixed at Rs. 14,71,480.50. 3. Being not satisfied with the order passed by the adjudicating authority, the appellant has come in appeal before the Tribunal. 4. Shri M.M. Jayakar, the learned advocate has appeared on behalf of the appellant. He had reiterated the facts. He pleaded that the transaction was at arm's length and the declared value should have been accepted. He argued that it was on the basis of a Hong Kong newspaper advertisement. A copy of the same was given to the Collector. The order was placed on 4th October, 1988 with M/s. Sigma Technical Co. The invoice is dated 14th January, 1989 and the goods arrived in February, 1989. Bill of Entry was filed on 27-2-1989. The show cause notice was issued on 10th August, 1989. He referred to para No. 5 of the show cause notice as to contemporaneous imports. He argued that no exchange r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He argued that the date of contract is the date relevant for adopting the value. In support of his argument he cited a decision in the case of Kischo Cutlery Ltd. and another v. Union of India reported in 1984 (15) E.L.T. 367 (Bom.). He pleaded that the imports cited by the adjudicating authority are contemporaneous imports. He cited the following decisions :- (1) 1989 (40) E.L.T. 207 - Metal & Alloys Industries v. Collr. of Cus. para 4. (2) 1983 (14) E.L.T. 2177 (Bom.) - Satellite Engineering Ltd. v. Union of India para 9 He argued that it was not necessary to mention the exchange rate in the show cause notice. He pleaded that the value has been correctly ascertained in terms of Customs Valuation Rules. He referred to a decision in the case of Narayan International v. Collector of Customs, Delhi reported in 1992 (58) E.L.T. 126 (Tri.) = 1991 (37) ECR 656. Shri Prabhat Kumar, the learned Departmental Representative pleaded that the penalty imposed is very reasonable and is in accordance with the gravity of the offence. In support of his argument, he cited the following decisions :- (1) 1987 (28) E.L.T. 318 (Tribunal) - Macneill & Magor Ltd., Calcutta-I v. Collector of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acking. Each of the spools contained all the technical details of size, diameter and resistancy which ranged from 1.93 for 20 SWG to 7.71 for 26 SWG. On examination of the goods they were found in the imported packages and were electric resistance wire of the famous Japanese brand which is being imported regularly by several other importers and on chemical test of the goods and comparing the details indicated in the labels on the spools with particulars indicated in the manufacturer's catalogue/technical literature it was found that the goods were quality wire of famous HSK No. 4 brand without any defect and the sole exporting agent from Japan was M/s. Tohwa Electric Co. Ltd., Japan. The invoices on which reliance has been placed by the appellant do not bear any chronological numbers and we are of the view that no reliance can be placed on the same. We have looked into the judgments cited by both the sides. The judgments cited by the learned advocate do not help him. Hon'ble Bombay High Court in the case of Satellite Engg. Ltd. v. Union of India and Others reported in 1983 (14) E.L.T. 2177 (Bom.) has held as under :- "9. Shri Talyarkhan submitted that the price charged to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertained by the revenue authorities. 7. For coming to the imposition of penalty, the declared value was Rs. 1,96,671.70 (US $ 13,000.00), whereas, the assessed value was Rs. 14,90,166.30 (US $ 98,500.00). The appellant was very much aware of the goods imported. Tribunal in the case of Macneill & Magor Ltd., Calcutta v. Collector of Customs, Calcutta reported in 1987 (28) E.L.T. 318 had held as under :- "There could be no quarrel with the abstract proposition that the burden of proof required in penalty proceedings is much higher than in mere assessment disputes. But that does not mean that the evidence can be or has to be foolproof or beyond reasonable doubt. Thus, if in an abstract case it could be shown that a published price list of the goods was available that the importers in general were importing the said goods at that listed price and that one particular importer declared on importation a price which was more than 100% lower than the listed price, there would indeed appear to be a very heavy onus shifted to the importer to explain how he got such a low price. Under-invoicing and over-invoicing in the course of international trade are, like other present day white colla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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