9911796707
TMI Blog1995 (1) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and wanted adjudication on the basis of the personal hearing only. The Collector of Customs (Airport), Bombay who adjudicated the matter found, vide his order-in-original dated 3-10-1986 (issued on 28-11-1986), the charges levelled against the appellants as established, and ordered the goods to be confiscated under Section 111(d) of the Customs Act, 1962 (hereinafter referred to as the `Act ); an option was, however, given to the owners to redeem the goods on payment of a fine of Rs. 12 lakhs, subject to the condition that the imported goods are registered under the Act of 1968. The value for the purposes of Section 14 of the Act was determined at US $ 140 per Kg., as against the declared value of US $ 60 per Kg. The matter had came up before the West Regional Bench of this Tribunal on 3-11-1987. Earlier the matter had been heard by the West Regional Bench on 2-4-1987 and the orders had been reserved, but the orders could not be issued before the retirement of one of the Members of the Bench. On 3-11-1987 when the matter was reposted for hearing, a preliminary objection was raised by the JDR representing the Revenue (with which the learned Consultant appearing for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant mats. According to the appellants the goods were covered under OGL (open general license), while the Customs Authorities were of the view that for their import a regular license was required. It was also alleged that the goods have been undervalued, as another import by M/s. Richardson and Hindustan Limited was at a higher price of US $ 140 per Kg. They have approached the Bombay High Court, and had abandoned the second consignment. The learned Advocate stated that for the goods under consideration there were two competing entries in the ITC Schedule and that one was a general entry while the another was a specific entry. In the circumstances, the specific entry should prevail, and that the goods were rightly covered by OGL. As regards the provisions of the Act of 1968, it was submitted that the product was not required to be registered under the provisions of that Act. Even then after the order was passed by the Collector of Customs, the registration had been obtained by M/s. Trans, on whose behalf the goods had been imported. Earlier imports of similar goods were allowed under OGL, but the adjudicating authority did not consider the evidence of earlier imports. The learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in terms of ITC provisions had to be seen. As regards valuation the importer submitted invoices at the rate of US $ 60 per kg. while the department noticed imports at higher prices. In the invoices no grade was given. The invoices relied upon by the Customs were contemporaneous, and the learned JDR relied upon the Tribunal s decision in the case of Nilinite Corporation v. C.C. - 1993 (64) E.L.T. 207 (Tribunal). The clarification given by the suppliers was vague. The clarification had been given by the Bombay office. The grade was not given. Invoices were vague. The Collector had discussed the points regarding valuation and had discussed the various submissions made by the appellants. In the circumstances, the learned JDR pleaded that the invoices have been rightly rejected. In this connection he relied upon the Tribunal s decision in the case of Navbharat Enterprises Pvt. Ltd. v. C.C. Madras, 1989 (34) E.L.T. 388(Tribunal). Reliance was also placed on the following :- (1) African Trading Co. Pvt. Ltd. v. C.C. - 1993 (64) E.L.T. 497 (Tribunal) (2) Pradeep Kedia v. C.C. - 1993 (67) E.L.T. 519 (Tribunal) (3) Veekay Fotokad India Pvt. Ltd. v. C.C. - 1993 (49) ECR 493 (Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations (General and Applied Entomology, Tata Mc Graw Hill Publishing Co. Ltd. New Delhi page 383-384). The import was sought to be covered under OGL Appendix 6(1) of AM 1985-86. The Revenue was of the view that the goods were covered by S. No. 219 (21) or S. No. 219(39) Appendix 3 Part A, and could be imported only against a valid import license. The Entry No. 380 of Appendix 6, list 8 part I covered Synthetic Pyrethrum (including synthetic pyrethroides, other than decamethrin, permethrin, Cypermethrin, fenvalrate). S. No. 219(21) of Appendix 3 Part A covered Formulations of those pesticides included in OGL , while S. No. 219 (39) of Appendix 3 Part A covered pyrethrum preparations containing this item . There is nothing on record to show that the goods imported were in the nature of a formulation of any pesticide (which were based on synthetic pyrethrum), or were a preparation containing pyrethrum. The Adjudication Authority had observed that Synthetic Pyrethrum as contended by the importers is more specifically covered by S. No. 380 of Appendix 6, list 8 Part I . In the circumstances, it has to be ruled that the goods imported were covered by the OGL. 9. The adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the same to the extent of Rs. 8,00,000/- (Rs. 8 lacs only). Thanking you," The excact date on which the order was placed by the appellants with the foreign suppliers is not known, but in any case it must be earlier than 12-06-1986 when the foreign suppliers order acceptance was conveyed, to the appellants, under their Indent No. BOMMA-7238 dated 12-6-1986 (refer to page 44 of the Paper Book-Exhibit C) by the Bombay office of the foreign suppliers. The letter of authority placed on record shows that it was also issued on 12-06-1986, and was valid upto 30-10-1986 (page 43 of the Paper Book). The goods are mentioned 1000 Kgs. Synthetic Pyrethrum. The authority was said to be under para 119(1) of the Hand Book Policy 1985-88. In the authority letter there is a mention of the Indent No. of the Bombay office of the foreign suppliers under which the foreign suppliers order acceptance was conveyed to M/s. Lark Trading Company on 12-6-1986. Thus authority letter although of the same date appears to be given after the order acceptance by the foreign suppliers. 10. The services of the Agent could not be utilised for effecting remittances of opening letter of credit, in terms of para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Trans for import (at page 110 of the Paper Book) is dated 18-6-1987. The certificate of registration was subjected to the condition, among others that the technical material should have the chemical composition as submitted by you and on which the data are generated/submitted by you. It thus appears that on the date M/s. Trans sought to authorise M/s. Lark Trading Company, they themselves were not eligible for the import in question. 13. In the light of the above discussions we are of the view that the goods had been imported by the appellants in contravention of the provisions of the relevant ITC Policy. 14. As regards the valuation it was alleged against the importers that the import of like goods at the relevant time had been noticed at the rate of US $ 140 per kg., whereas the importers had declared a price of US $ 60 per kg. The importers vide their letter dated 1-10-1986 had waived the issue of the Show Cause Notice, and had sought adjudication on the basis of the personal hearing, which was granted to them. 15. For sake of reference the provisions of Section 14 of the Act are extracted below :- Valuation of goods for purposes of assessment. - (1) For the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 1000 Kg. The invoice dated 14-5-1986 for the goods shipped to M/s. Richardson and Hindustan Ltd. also refers to the Synthetic Pyrethrum only, and the price quoted is US $ 140 per Kg. 17. The importers had contended that the department was comparing the value of the goods imported by them with the invoice value of the goods imported in May, 1986, by a party which had received only 30 Kgs. of Synthetic Pyrethrum from the same suppliers at the rate of US $ 140 per Kg. They had relied upon the certificate from the supplier that the goods supplied at the rate of US $ 140 per Kg. related to a different grade of Synthetic Pyrethrum. They had also filed the copies of Bills of Entry and relative invoices in support of their contention that Synthetic Pyrethrum of the type imported by them had been imported at the price of US $ 60 per Kg. The adjudicating authority had observed that no grade or purity has been shown in the invoice. He also noted that the foreign suppliers had supplied 200 Kg. Synthetic Pyrethrum to another party at the rate of US $ 1438 Kg. and that the consignment was cleared against the Bill of Entry No. A 424 dated 12-1-1986. He rejected the importers contention tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 497 (Tribunal), the Tribunal held that the price of contemporary imports of similar goods being available, the invoice price quoting lesser amounts was not acceptable and value of the goods was to be enhanced accordingly. Para 6 of the decision is extracted below :- 6. The second contention is that the goods are supplied pursuance to the contract i.e. 24th April, 1980 whereas the so-called contemporary imports are dated June/July, 1981. Even accepting that the contract relates to 24th April, 1981 under Section 14 of the Customs Act the value shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade-....... In other words if the price of similar goods on the date and place of import is available then the customs authorities are competent to determine the assessable value by adopting the said price disregarding the invoice price. In this case the price of contemporary imports of similar goods is available. Therefore, the customs authorities are justified in rejecting invoice value. As regards the quality of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises v. C.C.E. - 1990 (45) E.L.T. 644 (Tribunal) the contemporaneous import of similar goods was not considered and the assessable value was sought to be raised only on the basis of the dimensions. In the case of Honesty Traders v. C.C. - 1991 (55) E.L.T. 102 (Tribunal) it was observed that under-valuation could not be proved by mere assumptions and presumptions and that suspicion, however, grave cannot be a substitute for positive proof. As we have discussed above, the above observations and findings have no application to the facts before us. 21. The goods were imported in August, 1986. They were in the nature of chemicals with limited shelf life. They were detained by the Customs and proceeded against. The case was adjudicated in October, 1986. The differential Customs duty was demanded and redemption fine was imposed. We find that the West Regional Bench of this Tribunal had ordered for early hearing of the case as early as on 2-3-1987, keeping in view the facts and circumstances of the case. The case had been heard on 2-4-1987 and the orders were reserved. The orders could not be passed as one of the Members retired. The cases was reheard on 3-11-1987 when on prelimin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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