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TMI Blog1994 (11) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... nstead, they indicated in the Bill of Entry that they had submitted an application for import licence to the CCIE for which they produced a receipt dated 3-4-1992 from licencing authority namely Joint Chief Controler of Imports Exports, Ahmedabad. The relevant Import Policy at the time 1992-97 requires specific licence for the import of second-hand machinery. Such licences, further, according to the policy, are issued only to actual users. The Customs House found that judging from the number of engines imported, the applicants could not have imported so many of them as actual users. The goods were examined, they were found to be diesel engines suitable for use in motor vehicle and in used condition. They were also fitted with additional i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a fine of Rs. 50 lakhs in lieu of confiscation. He imposed a penalty of Rs. 5 lakhs on the appellants and a further penalty of Rs. 2 lakhs on Ms. Sudha Parikh. Shri A.S. Sunder Rajan, the learned Consultant for the appellants submitted that the confiscation of the goods on the ground that they were not covered by a valid import licence, is not being seriously challenged by the appellants but the learned Consultant contended the valuation adopted by the Collector for the engines was erroneous and unacceptable and Collector, when considering contemporaneous, values should have considered all such values available and, in this context, the learned Consultant referred to instances of similar imports that the appellants had collected and now p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Sudha Parikh has at all been made out at any stage. Therefore, the penalty on this appellant is totally unlawful. Shri A.K. Singhal, the learned Departmental Representative submitted that the goods imported are automobile engines second-hand and, therefore, import was never permissible under the Import Policy without licence. There is a large gap between the CIF value and the market value that these engines can fetch in India. What has been imported is not merely used diesel engines but engines fitted gear boxes and compressors for Air-conditioner. The learned Departmental Representative relied upon the case law reported in 1991 (52) E.L.T. 439 (Tribunal) in the case of Shiv Shakti Enterprises v. Collector of Customs and also in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argin on profit on the goods and the circumstances of their import without licence. 2. The submissions made by both the sides have been carefully considered. The fact that the used diesel engines imported required an import licence which the appellants did not possess, is admitted. Therefore, the confiscation of the goods under Section 111(d) of the Customs Act, 1962 is in order and is upheld. On the question of misdeclaration of the goods as regards their description and value, it is seen that the declaration in the Bill of Entry as second-hand once used old diesel engines does not quite fit in with the goods found on examination which were found with additional fittings, namely, gear box, alternators, compressors etc. In this contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressors for air-conditioners and alternators. Therefore, these prices also do not advance the appellants case. Tribunal has laid down in the case of Shiv Shakti Enterprises v. Collector of Customs, reported in 1991 (52) E.L.T. 439 (Tribunal) that in such a situation of misdeclaration, the invoice value will not reflect transaction value, and hence can be discarded. The ratio is applicable to the present case and the assessable value determined is reasonable considering the practical difficulty in respect of second-hand engines to obtain value of identical goods of contemporaneous import. It is also relevant in this context to note that the appellants had not contested the valuation aspect in detail before the Collector but had chosen to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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