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TMI Blog1995 (3) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... give the correct and true declaration on the Bill of Entry or at least a communication to the Customs about the technicalities of the said goods, especially as the license is specific without giving any allowance regarding its capacity. When the licence is so specific and if the goods different from the conditions of the licence, it is for the appellant to either amend the licence or at least some steps should have been taken to have the licence amended before the goods are imported so as to avoid the complications. Having failed to do so, and as it fell on the customs to point out anomaly on examination of the goods, it cannot be stated at a later stage that they had no mala fide. As rightly pointed out by the Lower Authority, having received the relevant invoices, and being well versed with the code number and supply number as per the suppliers catalogue, as a regular importer, they should have informed the Customs the discrepancy whereas a Bill of Entry has been filed mis-declaring the capacity. The catalogue titled Maxter XT-1000/2000 family, specified the subject goods under the code number XT-2190 as follows capacity, unformatted 191.23". Further MS-DOS user s guide and refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the country of origin, the goods were found to be as under :- (a) 2 fixed Winchesters - USA make (b) 1 fixed Winchester - Singapore make (c) 3 streaming Tape Drive - Singapore make The capacity of the Winchester Drives according to the specification given on the goods was found to be 190 MB. Show cause notice was dispensed with by the appellants who requested for a personal hearing. 3. Shri K. Parmeshwaran, the ld. Advocate appeared for the appellant and submitted that the foreign supplier had confirmed that the goods were supplied according to the purchase orders; that they had received orders of 150 MB Winchester Drive but the foreign supplier supplied only Standard Model (XT-2190); that this model had a usable capacity of 150 MB; that there was no mis-declaration inasmuch as the supplier firm had confirmed that whatever was ordered was supplied; that the order was placed strictly in accordance with the license under duty exemption scheme given to them; that the description given in the Bill of Entry was the same as was given in the licence; that minor variations in descriptions of goods cannot be taken as mis-declaration; that the lower authorities had relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) = 1988 (18) ECC 11 was mis-placed; that reliance on MS-DOS User s Guide which is not at all relevant was mis-placed and mis-conceived. Summing up his arguments, the ld. Counsel submitted that in view of the submissions made by him, the impugned order may be set aside and the appeal allowed. 4. Shri K.K. Jha, the ld. SDR appearing for the respondents submitted that mis-declaration of the goods was very clearly established by the department inasmuch as on examination of the goods the specification of capacity given on the Fixed Winchesters was found to be 190 MB as against the declared capacity of 150 MB; that even the origin of the goods was not correctly shown inasmuch as one out of three Fixed Winchesters was found to be of Singapore make as against the declared origin of USA; that even the catalogue shows that the capacity of the fixed Winchesters was 190 MB; that the contention of the appellants that 190 MB was unformatted capacity was not supported by any evidence; that even the fax message received from the foreign supplier clearly indicated that whenever an order for 150 MB was received, they supplied fixed Winchester of 190 MB. All these evidences clearly showed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were 3 Nos. Winchester (XT-2190) and capacity was 190 MB as per specification. We also observe that in the Bill of Entry the country of origin was declared as USA, however, 1 out of 3 Winchesters was found to be of Singapore make. On a careful study of the catalogue furnished by the appellants we find that (XT-2190) corresponds to 190 MB capacity as is evident from Maxtor Technical Data. An argument was adduced by the appellants that 190 MB capacity was unformatted capacity and when formatted, the usable capacity will be 150 MB. However, on perusal of the Bill of Entry, we find that capacity has been shown as 150 MB, there is no indication in the Bill of Entry whether it is formatted or unformatted. On scrutiny of the Fax message sent by the foreign supplier which clearly indicated that whenever they receive the order of 190 MB they supplied only 150 MB Winchester. If that was so, the importer should have known this. The department also tried to get expert opinion from a scientist of a well reputed institute. It has been claimed that report was not given to the appellants. We find that show cause notice was not issued in this case as the requirement of issue of show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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