9911796707
TMI Blog1994 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ence produced for clearance. 3. It was also observed that some of the goods were without marks; in some cases markings were torn off in identical manner on all the sides. There were also some discrepancies with regard to the number of pieces and the country of origin. 4. The importers had taken the matter to the Gujarat High Court who had given some directions to the department for provisional release of the goods, and the early disposal of the case. 5. The Collector of Customs, Kandla who adjudicated the matter, came to the following findings : (1) The country of origin of 210 pieces has been mis-declared as Thailand while the goods were of Japanese origin. (2) The goods imported were evaporator assembly and that the evaporator assembly was more than a evaporator. (3) Prices for customs purposes have been under-declared. The correct assessable values were determined as Singapore $ 220 per piece for goods of Japanese origin and as Singapore $ 165 per piece for goods of Thai origin, as against the declared assessable value of Singapore $ 60 and Singapore $ 45 respectively. (4) The import was unauthorised as the licence produced for clearance was not valid and did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nauthorised. Dealing with the facts she submitted that the correspondance produced by the importer did not meet the charge of under-valuation, and on the other hand the evidence produced by the department was overwhelming to establish the charge of under-valuation. The learned SDR cited a number of decisions in support of the points made by her. In particular she cited the following decisions : (1) MJ Exports Ltd. v. CEGAT - 1992 (60) E.L.T. 161 (SC) - opinion given by the Chief Controller of Imports and Exports is binding. (2) Satellite Engg. v. UOI - 1987 (31) E.L.T. 356 (Bom.) - the nearest esti- matable equivalent could form the basis for determination of value. (3) AAR Keyess Imports Corp. v. CC - 1988 (37) E.L.T. 188 (Trib.) - prices prevalent during immediate past years for valid reasons are relevant for the purposes of valuation. (4) Hind Packaging Industry Ltd. v. CC - 1989 (40) E.L.T. 168 (Trib.) - when the value declared by the appellants was ridiculously low, the Collector of Customs could adopt the value on the basis of the invoice seven month old. 9.2 The learned SDR also referred to some other decisions which will be discussed in subsequent paragraphs. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il dt. 24-4-1990 Maya Enterprises wrote to M/s. Yama Kawa Trading Co. Pvt. Ltd., Singapore requesting their quotation for evaporators suitable for Indian cars. No other details or specifications such as cooling capacity, dimension, airflow etc. were mentioned in that communication. On 22-6-1990 M/s. Yama Kawa wrote a letter to Maya Enterprises (attention Mr. Singh) referring to their enquiry regarding the evaporators and quoting their price. The reference was only to the enquiry and there were no mention of any communication as such. In this communication from the suppliers also there was no reference to any specification, name of the manufacturer, model to which the prices etc. quoted related. Vehicle, the particular car or cars for which the evaporator whose prices were quoted could be suitable, were also not referred to. On 26-6-1990 (in response to letter dt. 22-6-1990) acceptance letter was despatched to the suppliers for 1500 pieces of evaporators (Thai origin). In this order also no other details except number of pieces were mentioned. It is seen that in proforma invoice dt. 5-7-1990, order dt. 12-7-1990, Bill of lading dt. 29-8-1990, commercial invoices dt. 29-8-1990, certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sensor 5. Cooling coil 6. Plastic cover with Grills 7. Switches for thermostat control and blower motor. 8. Drain Tube 9. T-Joints for drain tube 10. Brackets/supports 11. Wiring harness with fuse 12. Misc. Nuts Bolts. 19. The Collector of Customs has discussed in detail that the goods imported were `evaporator assembly which is more than an `evaporator . Although he has come to a finding that there was no mis-declaration in respect of the description of the goods, he has considered this fact relevant for arriving at the correct value of the goods. 20. In this connection, we may refer to the description of the evaporator in the world book encyclopaedia volume 5 page 98 : A dehumidifier consists of a set of cold coils, called the evaporator, and a set of hot coils, called the condenser. A fan in the dehumidifier draws moisture filled air from a room and blows it across the coils. The Air loses moisture as it passes over the evaporator and it is reheated to room temperature by the condenser. The air then re-enters the room, absorbs moisture again and recirculates through the dehumidifier. 21. While we find that the prices declared without any relationshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessable value and in certain circumstances the invoice value was ignorable. 26. As we have noted above the correspondence exchanged between the importer and the supplier does not inspire confidence with regard to the prices at which the goods have been sought to be cleared. It is obvious from the actual import that in the documents the term evaporator has been used in a larger sense while the price declared is of the evaporator in the narrow sense. 27. As regards the validity of the licence we find that the licence dt. 20-2-1989 has been transferred in part by M/s. Sound N Image in favour of M/s. Maya Enterprises in terms of para 183(i) and (ii) of the Import policy for 1988-91. It was made clear in the letter of transfer : In the event of any penalty/damage or loss on account of mis-utilisation, if any, made by you or your transferee you will be fully responsible for the same and we do not own any responsibility and liability for the same. 28. We also find that the Joint Chief Controller of Imports and Exports, under his order dt. 6-8-1991, after taking note of the various submissions made by the licencee/transferees, and the case law cited in support of their contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon. Supreme Court have held in the case of Jain Exports Pvt. Ltd. v. UOI - 1993 AIR SCW 2686 as under in para 6 : The quantum of the redemption fine would depend on the facts and circumstances of each case and no hard and fast rule can be laid down in that behalf. So also the mere fact that the importers had acted in good faith and bona fide will not entitle them to claim that the entire redemption fine must be waived. Even in such cases the fixation of the quantum of the redemption fine will depend on the totality of the facts and circumstances of the case. 34. In Para 9 the Hon. Supreme Court have further added as under : the fixation of the quantum of redemption is in exercise of the discretionary jurisdiction of the authorities under the Customs Act and ordinarily this Court while exercising jurisdiction either under Article 32 or under Article 136 of the Constitution would be slow to interfere with such an order unless it is shown to be thoroughly arbitrary or whimsical resulting in gross mis-carriage of justice. 35. The Tribunal decision under Order No. 773/90-A, dt. 26-3-1990 in the case of Shashi Kant and Co., Bombay v. CC relied upon by the appellants has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
