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TMI Blog1993 (8) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 3(2) of the Imports and Exports Control Act, 1947, granting option to pay fine of Rs. 5,00,000/- in lieu of confiscation, and also imposing personal penalty of Rs. 2,50,000/- on the appellants. 2.1 The appellants imported 18000 lbs. of vanilline and sought its clearance under REP licence. The valuation of the goods was shown as Hong Kong $ 500 for 100 lbs. and the country of origin was shown as Hong Kong. Bill of Entry was filed and copies of the invoice, Bill of Lading, a letter styled as Price List, Sale Contract etc. were produced.The department however suspected the undervaluation and hence the samples were drawn and were got examined by Deputy Chief Chemist who certified them to be pure vanilline, and other investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed at Rs. 26,84,330/- CIF and Rs. 27,11,174/- M.V. as also why the goods should not be ordered confiscation vide Section 111(m) and (d) of the Customs Act, 1962 and why the penalty should not be imposed vide Section 112(a) of the Act. 2.3 The appellants filed their reply dated 17-2-1992 and reiterated the same stand, as also requested for re-test of the goods by Chief Chemist, and, also pleaded that because the goods were of 1989 and purchased by them in 1991, the quality had deteriorated and because of loss of fragrance, which is essential quality in grading the marketability, the value had gone down, and that there was no misdeclaration on their part. 2.4 The adjudicating authority granted personal hearing and finally passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price quoted was less, as the goods were of inferior quality. It was only at a later stage, that a copy of the telex message from the supplier, that the goods were of 10 to 15% purity, was produced where, no mention was made as to on what count the purity was assessed so low. It was only in the statement of Shri Usman Gani, the proprietor of the appellant firm, recorded on 4-2-1992, that he came forward with the plea that the country of origin was Taiwan and the suppliers Satyam Ltd. had purchased the goods from the Taiwan suppliers, in the year 1989, and had sold them to the appellants in 1991, and that because the stock was old and fragrance was less, the value was less. Meanwhile, the subject goods were got examined by the Deputy Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rically denied and no plausible explanation is given. Though the Ld. Advocate for the appellant has pleaded that the burden would lie on the department alleging under-valuation, to prove the same, the Ld. SDR, has rightly refuted the same by submitting that, these were all the facts within the special knowledge of the appellants, and it was for them to adduce conclusive evidence, as, by pleading special grounds for the lower value, the appellants have virtually accepted that but for these special circumstances, the value would have been higher. As is rightly submitted by the Ld. SDR, with the plea as is raised by the appellants, the burden cast on the Department to establish undervaluation is duly discharged by the tacit admission thereof b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be of inferior quality entirely lay on them, and non-action or lacuna on the part of the department in that regard could not prejudicially affect the appellants on this particular issue. 7. Under these circumstances, the plea that there is no under-valuation and that the goods were of inferior quality cannot be accepted and is therefore rejected. 8. The question that then assumes importance, is what could be the value of the the subject goods. The adjudicating authority for this purpose, has based the findings on some alleged contemporaneous imports and mainly on the computer print-out available with the department, in exercise of powers under Rule 8 of the Valuation Rules. In the Show Cause Notice issued, the department has referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legality of the import vis-a-vis the availability of value limit in the licence, it is deemed proper to set aside the entire order of the adjudicating authority. 10. While ordering the remand, it is directed that the Ld. adjudicating authority shall furnish the copies of the documents sought to be relied upon for the purpose of valuation. As the copy of the second test at the private laboratory is already supplied, no specific direction is given. The adjudicating authority shall after supply of the copies of all relevant documents in relation to fixation of valuation, shall, after giving reasonable time, fix the matter for personal hearing and shall take appropriate decision according to law. It is however clarified that the remand is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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