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TMI Blog1994 (9) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... en them they had imported 2000 sets of complete VCR kits (minus some minor parts) in the form of assemblies and sub-assemblies which were in the nature of restricted items for import licensing purposes. It was alleged that the goods imported had been misdeclared and under-invoiced and that they had been imported without valid import licence. Under show cause notice dated 25-11-1991, M/s. SE, M/s. CAD and others were show caused for confiscation of the goods, demand of proper customs duty on proper assessed value and imposition of penalty. The matter was adjudicated by the Collector of Customs, Sahar Airport, Bombay, who after discussing the description and value of different items ordered confiscation of the goods, re-determination of the assessable value, imposed redemption fine and levied penalties, as detailed in his Order-in-Original. 3.The matter was posted for hearing on 23-5-1994 and 24-5-1994 when Shri L.P. Asthana, Advocate appeared for the appellants. Shri Prabhat Kumar, SDR represented the respondent. 4. Shri L.P. Asthana, The learned Advocate stated that these were two appeals. Some items were common to both the appeals and that the supplementary show cause notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lsewhere. The licence produced by them covered the goods imported. In this connection, reliance was placed on the Calcutta High Court decision in the case of Collector of Customs, Calcutta v. Mitsuny Electronics Works, 1987 (30) E.L.T. 345 (Calcutta). There was no basis for confiscation and for imposition of penalty. In this connection, reference was made to the Supreme Court decision in the case of Akbar Badruddin Jiwani v. Collector of Customs - 1990 (47) E.L.T. 161 (SC), and Hindustan Steel Limited v. State of Orissa - 1978 (2) E.L.T. (J 159) (SC). It was also submitted that the Order-in-Original did not cover all their arguments and submissions. While coming to his conclusion regarding mis-declaration of description, under-declaration of value and violation of ITC policy, the learned Collector of Customs had not considered the evidence adduced by the appellants, although the said evidence was on record. The learned Advocate, however, pleaded that the appellants were not for remanding the case but for re-export of the goods. In this connection, he relied on the Supreme Court decision in the case of MJ Exports Limited v. CEGAT - 1992 (60) E.L.T. 161 (SC). As an alternative, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty, as held by the Hon ble Supreme Court in the case of Pine Chemical Suppliers v. Collector of Customs - 1993 (67) E.L.T. 25 (SC). 6. In rejoinder, the learned Advocate submitted that the flexibility could not be stretched, and again pleaded for allowing re-export of the goods. 7. We have carefully gone through the facts and circumstances of the case and have given our due thought and consideration to the submissions made by both the sides. 8. M/s. `S.E. had imported 8 consignments of parts/components of VCRs and submitted 8 bills of entry for their clearance. M/s. `CAD had imported 9 consignments and submitted 9 bills of entry for their clearance. Between them, they had imported 2000 sets of VCRs. On examination of the goods a number of discrepancies were noted with regard to description. The invoices did not contain full description and the type of the goods imported. No manufacturer s invoice was furnished. On comparison with the invoices of contemporary imports, the imports of similar goods by other importers, and on the basis of the expert advice by panel of experts from the electronic industry, the goods were found to be under-invoiced and the value under-declared. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate that the supplier has asked for payment. While copies of the REP import licences were produced, it was found that in the transfer letters no date was mentioned and that no licence was found transferred in the name of CAD. It was noted that assemblies/sub-assemblies being restricted items could not be permitted against REP licences. 10. The basis for revising the value upwards has been discussed in detail by the adjudicating authority in his order. The matter has been analysed item wise. Depending upon the goods as described and as found on examination, and taking note of the valuation provisions, he has discussed the basis for accepting or rejecting the invoice value and for arriving at the correct assessable value. In the particular circumstances of the case the valuation has to be determined under Rule 8 of the Customs Valuation Rules, 1988, using reasonable means, consistent with the principles and provisions of these rules and on the basis of the best possible information available. In the case of Universal Commercial Corporation v. Collector of Customs, Delhi - 1994 (69) E.L.T. 150 (Tribunal), the Tribunal has held that the invoice value was rejectable when the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts referred to above, they do not wish to clear the goods for home consumption even if the fines and penalty are remitted by the Hon ble Tribunal in appeal." 14. The goods have been provisionally allowed to be warehoused under Section 59 of the Act against PD bonds and ITC bonds. The goods have not yet been cleared. The goods are not prohibited goods for the purposes of Section 51 of the Act read with Section 2(33) of the Act. Under clause 15 of the Export Control Order 1988 certain situations in which the Export Control Order does not apply have been enumerated. It provides that in certain circumstances exports can be permitted even where such export might otherwise contravene the provisions of the Export Control Order. It provides, among others, that the goods imported without a valid licence if permitted to be re-exported could be re-exported irrespective of any restrictions under Export Control Orders issued from time to time. Para 174(1) of the Import-Export Policy for the period 1988-91 provides that no REP benefits are admissible in the case of imported goods which are re-exported in the same State without undergoing any processing or manufacturing operations in India. Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, we do not consider it necessary to discuss the case law cited by both the sides in support of their respective arguments. 17. Taking all the relevant considerations into account and in the light of our findings that the goods were not correctly declared and the declared prices in respect of various items as discussed in the impugned order have been rightly rejected, we allow re-export of the goods subject to the condition that M/s. Caditronics pay a fine of Rs. 2.50 lakhs (Rupees Two Lakhs Fifty Thousand Only) and penalty of Rs. 1.25 lakhs (Rupees One Lakh Twenty Five Thousands Only) and M/s. Supreme Electronics pay a fine of Rs. 1 lakh (Rupees One Lakh Only) and penalty of Rs. 50,000/- (Rupees Fifty Thousands Only). On payment of the above amounts of fine and penalty the goods which were provisionally allowed to be warehoused under Section 59 of the Act, shall be permitted by the competent authority to be re-exported to their suppliers under prescribed procedure and safeguards. Both the appeals are disposed of in the above terms. 18. [Order per : S.L. Peeran, Member (J)]. - I have gone through the order recorded by Ld. Brother Shri Lajja Ram. For the detailed reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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