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TMI Blog1993 (10) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Policy 1988-91. These licences were valid for import of Appendix 3-A items, and it was claimed by the importers that the imported goods were covered by the description against Sl. No. 569 of that appendix. In the show-cause notice dt. 11-5-1989, it was however, alleged that the goods were door fittings i.e. door-knobs/handles with in-built locking mechanism packed in consumer packing, containing handles and the locks along with screws, fittings, accessories and keys. It was further alleged that the goods fall under Sl. No. 145 of Appendix 2B, and were not covered by the licences produced for clearances. 4. The goods were invoiced at the rate of US $ 10 per dozen. It was alleged on the basis of market enquiries that the declared value was not the correct value. 5.The Collector of Customs, Rajkot, who adjudicated the matter observed that the goods imported were door-fittings/door-knob with locking mechanism, and were not the goods mentioned in Sl. No. 569 of appendix-3A, but were covered under the generic category of consumer goods mentioned in Sl. No. 145 of the appendix 2B, whose import was restricted. He held that the importers claim to clear the goods in question under r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f market enquiries had not been disclosed to them and as such the order was bad in law. 11. He submitted that the goods were with the customs department having been absolutely confiscated, and that they had already paid the amount of penalty on 16-8-1989. 12. The learned Advocate cited a number of decisions in support of his argument that in the circumstances of this case the burden of proof that the prices have not been correctly declared was on the deptt. 13. Sh. Prabhat Kumar, the learned SDR stated that Bill of entry was filed under the new valuation rules which came into force on 16-8-1988. He referred to the amendment of rule 10 vide Notification No. 44/90-Cus., dt. 3-8-1990 and stated that this amendment has retrospective effect. He submitted that Rule 7 of the Valuation rules was not quoted but added that it will not make any difference. As regards the import policy he stated that the goods imported were finished consumer goods and appendix 3-A was only for raw materials, components and consumables. He submitted that the goods were correctly covered by Sl. No. 145 of Appendix 2B. 14. He admitted that the details of market inquiries had not been disclosed to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r front door and office use. The deptt. classified the goods under Sl. No. 145 of the appendix 2B which covered all consumer goods howsoever described of industrial, agricultural or animal origin, not appearing individually in appendix 3 part A and 5 or specifically listed for import under open general licence . 19. Lock is a device that prevents a door or other object from being opened or moved. There are many kinds of locks. Common types include (1) Mortise locks (2) Rim locks (3) Cylindrical locks (4) Tabular locks (5) Combination locks (6) Pad locks and (7) Electronic locks. Each type works differently. 20. Cylindrical locks are the type most commonly found on household doors. The cylindrical locking mechanism is part of the door-knob. Cylindrical locks have a key-hole in the door knob. Most Cylindrical locks have a spring bolt. Some called pick-resistant locks have dead bolts. A key unlocks the door from the outside, and a small knob or key unlocks it from the inside. 21. The goods have been described in the order-in-original as door-fittings i.e. door-knobs/handles with inbuilt locking mechanism. Each unit pack contained handle and the lock along with the screws, fitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature covering all consumer goods howsoever described, of industrial, agricultural or animal origin, not appearing individually in appendix 3 part A and 5 or specifically listed for import under open general licence. 28. It is seen that the goods appearing individually in Appendix 3-A are excluded from the purview of entry No.145 of Appendix 2B. 29. Further para 21 (C) of the Import Export Policy April, 1988 - March 1991 Vol. - I (page 6) lays down the principle which will apply to the inter se interpretation of the entries in the various appendices as well as imports under O.G.L. It provides that an item with a specific description in Appendix 2 part B or 3 part A will prevail over an item with a generic description in any of those appendices. 30. There can be no doubt that the lock has been specifically described in entry No. 569 of appendix 3A and therefore this entry will prevail over entry No. 145 of appendix 2B which is generic in nature. 31 According to the maxim Generalibus Specialia Derogant if a special provision is made on a certain subject, that subject is excluded from the general provision. 32. There is no dispute that the import of the goods falling u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sole consideration for sale or offer for sale and there is no evidence of any clandestine remittance made over and above the invoice value should be the value of assessing the goods imported. The burden to prove misdeclaration of prices in the Bill of entry lies on the department and cannot be discharged by mere suspicion and that the charge of under-invoicing has to be supported by the evidence of prices of contemporaneous imports of like-kind goods. 40 In the case before us except mentioning that the market prices were higher and other evidence has been placed on record by the Revenue to sustain the charge of under-invoicing and in support of the prices adopted for assessment. There are no details of the market enquiries. 41. We find that the goods have been absolutely confiscated and a personal penalty of Rs. 40,000/- has been imposed. 42. As we have discussed above the goods imported were covered by the licencing provisions and that the department has not been able to substantiate the charge of under-invoicing in accordance with the provisions of the law. 43. The learned SDR had admitted that the details of market enquiry had not been disclosed to the appellant and as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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