9911796707
TMI Blog1997 (1) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... prays for waiver of the following amounts of duties, redemption fines and penalties on the Companies and persons as follows : - Name of the Companies/Persons Duties (Rs.) Fines (Rs.) Penalties (Rs.) (1) M/s. Rob Mathys (I) Pvt. Ltd. 23,81,474/- 35,00,000/- 10,00,000/- (2) Dr. S.M. Dhawan ... ... 10,00,000/- (3) M/s. Advanced Orthopaedics Products Pvt. Ltd. (i) 24,14,129/- (ii) 18,24,124/- (i) 20,00,000/- (ii) 15,00,000/- (i) 5,00,000/- (ii) 5,00,000/- (4) Dr. S.M. Dhawan ... ... 5,00,000/- 2. Giving briefly the background of the facts, learned Sr. Advocate submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in turn got in touch with the T.B., the manufacturer of the machines as aforesaid. A letter from T.B. was sent by the Swiss Embassy to the Commissioner of Customs. It was stated therein, that the invoices produced by the applicants/appellants at the time of clearance of the machines before the Customs Authorities, were not the documents prepared by T.B. In other words, it was alleged by the Customs Authorities that the said invoices produced by the applicants/appellants before the Customs Authorities were fabricated ones. Accordingly, show cause notices were issued to the applicants/appellants proposing recoveries of the differential duties confiscation of the machines installed in Jaipur and imposition of penalties on the applicants/appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in Switzerland and they had been using the machines after purchase of the same in September, 1993 from T.B. Since the said suppliers/manufacturers, M/s. Omag Impex intended to discontinue their production facilities, they were looking for suitable buyers. On the other hand, it so happened, submits the learned Senior Advocate, that the applicants/appellants herein because of their termination of Collaboration Agreement with M/s. Rob Mathys, Switzerland and because of setting up the independent production facilities of the components received so far from M/s. Rob Mathys, they were also looking in for similar manners. After a negotiation with the suppliers, the applicants/appellants herein procured the machines on as is where is basis. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Machines Private Ltd., produced the quotation in support of their own case. Such a circumstance, he submits, in the present cases does not exist. On the other hand, there are a catena of judgments which lay down that quotation of a manufacturer by itself, will not form the ground for fixing the value of goods inasmuch as there is no evidence of contemporary imports on the basis of that quotation. This view has been taken by the Tribunal in a number of cases, for example, in the case of Arihant Auto Accessory v. Collector of Customs, Madras reported in 1995 (76) E.L.T. 431, in which the aforesaid ratio has been upheld distinguishing it from the Judgment of the Honourable Supreme Court in the case of M/s. Sharp Business Machines. There is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and passed on to the Commissioner of Customs, on which reliance has been placed by the said authority. 6. Opposing the contentions of the learned Senior Advocate, learned S.D.R., Shri K.K. Biswas reiterates the findings of the adjudicating authority. He submits that the machines in question have to be considered as new because applicants/appellants themselves declared the Machines as new. He also submits that as per the provisions of the Customs Act, 1962, the goods are examined in the Docks before their release and they must have been found to be new as per the declaration; otherwise they would never have been released. Therefore, the assumption that the goods are new is in the favour of the Customs. He also submits that the enquiry ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h machines, can be appointed. We are sorry not to accept the request of the learned SDR in view of the disputed question of fact. We are also in agreement with the request of the learned Counsel for the applicants/appellant, that cross-examination of the concerned persons of M/s. Metropolitan Surgical Works, who obtained the budgetary quotation form T.B., would also be necessary in these cases in order to arrive at the correct valuation of the goods, apart from the valuation of the goods to be made by the Commissioner of Customs on the basis of such evidence as may be available in his possession and/or as may be adduced by the applicants/appellants or on the basis of best judgment. At this stage, learned Senior Advocate submits that their m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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