9911796707
TMI Blog1996 (7) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... rts of Expansion Valve and component parts of Dial Thermometers. The value of the goods was declared to be Rs. 4,99,209.00 c.i.f. The importers also claimed clearance of the goods under OGL Appendix VI List 8 Pt. I, S. No. 638/90-93. The Customs Authorities were of the view that the goods imported were Thermostatic Expansion Valve, complete component-wise but brought in S.K.D. condition and therefore were hit by S. No. 564 of Appendix III Pt. A of A.M. 90-93 and therefore the imported goods required a specific licence. It was also alleged that Dial Thermometers were complete but were brought in S.K.D. condition and therefore was hit by S. No. 702 of Appendix III Pt. A of the Policy of 1990-93 and therefore it was alleged that the import of this item required a specific licence. The second allegation was that the valve shown in the invoice and in the Bill of Entry did not reflect correct value. Accordingly a show cause notice was issued to the appellants asking them to explain as to why the imported goods should not be confiscated and why penalty should not be imposed on them. 3. On further investigation when new facts came to light an addendum to the show cause notice was issued. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been imported. He submitted that the Hon ble Supreme Court in the case of UOI v. Tarachand Gupta and Brothers reported in 1983 (13) E.L.T. 146 had held that parts and accessories of motorcycle and scooters imported in C.K.D. conditions will be treated as import of parts and accessories only; that on an analogy of this ruling of the Apex court, the component imported by them should be treated as import of components even though the components imported by the appellants were so complete that when put together they would make complete Expansion valves and Dial Thermometers; that in the case of Sharp Business Machines Pvt. Ltd. reported in 1990 (49) E.L.T. 640, the Hon ble Supreme Court had held that it was an admitted position that fully finished plain paper copiers were prohibited item for import and thus the device adopted by the company in the present case was a complete fraud on the Import Policy itself because the fully assembled copiers are the end products of the importer and hence cannot import them. Consequently confiscation of the goods in question and imposition of penalty both on the company and the Managing Director are justified and do not call for any rejection."; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on careful examination of these documents, it will be seen that the documents cannot be admitted as evidence under the provisions of Section 139 of the Customs Act, 1962. He submitted that the documents were received from a foreign country and that the persons named therein were not allowed to be cross-examined nor were they presented for cross-examination, therefore, the documents lose their value as admissible evidence. Analysing further, the ld. consultant submitted that the invoices though marked as export sales invoice were in fact the invoices for local sales and therefore the prices given in those invoices cannot be accepted as export price of the goods. Similarly, the price list for 1990-91 was the price list for internal sales as nowhere in the price list it has been stated that this is the export price list. This becomes more conspicuous, pleaded the ld. counsel, when the export price list of 1991-92 is looked at. Analysing this piece of evidence, the ld. counsel submitted that neither the price list nor the sales invoices can be accepted as evidence and even if they are accepted as evidence then they indicate only the local price and not the export sales price. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions the ld. SDR submitted that the impugned order may be upheld and the appeal may be rejected. 11. Heard the submissions of both sides and considered them. We find that there are two issues to be determined in the instant case. Issue No. 1 is whether the imported goods were components or complete expansion valves and dial thermometers and whether these goods were covered under OGL or required a specific licence. The second issue is whether the goods were under-invoiced. 12. Dealing with the first issue, we find that the evidence is that the goods were examined in the docks before the representatives of the importers and were found to be complete thermostatic expansion valves and complete dial thermometers though in S.K.D. condition. In addition, we observe that the adjudicating authority also examined the goods and found them to be complete dial thermometers and complete thermostatic expansion valves though in SKD condition. We also find that there is evidence on record that on the boxes, the marking was Tedington KDA Dial thermometer (A) Distance Term - Thermometer and on some other boxes there were markings `this carton contains instruments . This marking points out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be transported as a whole comes in CKD or SKD condition then they will be treated as components which is far from truth and not acceptable. In the case law relied upon by the Revenue it has been brought out very clearly that anything which cannot be done directly cannot be done indirectly also. As complete expansion valves and complete dial thermometers though in S.K.D. condition have been imported, we hold that the goods imported were complete expansion valves and complete dial thermometers and require a specific licence and accordingly uphold the findings of the adjudicating authority in this regard. 15. The second allegation is that the importer had mis-declared the value of the goods and the evidence for this allegation was that the goods were manufactured by M/s. Teddington Refrigeration Controls Ltd. but supplied to the Indian buyers by M/s. Elnode Ltd. The Revenue also were of the impression that M/s. Ranutrol Pvt. Ltd. was having some sort of technical collaboration with M/s. Teddington Refrigeration Controls Ltd. and for having this impression, the Revenue had relied on M/s. Frig Sales who also claimed to be the distributors of M/s. Ranutrol. This claim of M/s. Frig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than Rule 7 as indicated before. The question of admissibility of the investigation report as evidence under Section 139 of the Customs Act was vehemently opposed by the ld. counsel for the appellants on the ground that this was not admissible as evidence in as much as it was neither seized from the possession of the appellants nor was handed over by them. We hold that the investigation report is to be seen in the totality of the evidence placed on record and submissions made before us. We find that some collaboration negotiations were going on between M/s. Ranutrol of India and M/s. Teddington of U.K., we also observe that the manufacturer of the imported goods was M/s. Teddington of U.K. We also find that on some packing cartons, the markings were Teddington KDA Dial Thermometer-A distance Term - Thermometer . The importers could not furnish either the price list or the invoice of the manufacturer in support of their contention that the transaction value was the correct price. 18. We find that definitely there were negotiations going on between the Indian importer M/s. Ranutrol and the foreign supplier M/s. Teddington as has been confirmed by the explanation given by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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