9911796707
TMI Blog1999 (12) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... ere conducted by DRI resulting in issuance of show cause notice dated 11-4-1990. It was alleged in the notice that value would be at not less than US$ 1300 PMT CIF and in view of the undervaluation by the appellant such undervaluation was estimated to Rs. 9,48,491/- and the attempted evasion of duty works out to Rs. 10,96,484/-. Accordingly it was alleged that the goods were liable to be confiscated under Section 111(m) of the Act and the excess goods to the extent of Rs. 9,48,491/- were liable to be confiscated under Section 111(d) of the Act. The appellant replied by its letter dated 9-10-1990 denying the liability. The Collector on the basis of the investigation, viz. statement of the partner of the firm who accepted that the price of HDPE of Belgium origin was at US$ 1000 PMT. Therefore the value was revised and also the attempted evasion was fixed at Rs. 2,85,870/- as far as revised, i.e. mis-declaration valuation it was fixed at Rs. 2,47,44l/-. He, therefore, imposed a penalty of Rs. 1,00,000/-. Hence the present appeal. 3. Shri S.D. Nankani, learned Counsel for the appellant argued that the enhancement of the value from US$ 900 to US$ 1000 holding that the same was liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take place on first quarter of 1988. No doubt, by its communication dated 21-3-1988 there is a message which reads as under :- Att. Mr. Sureka Pls refer our contract of 9-11-87 for HDPE. Inspite our best efforts, we r not successful in gtg any supplies from our regular suppliers in Europe. There is no matrl at all in S pore. We hv t'fore reluctantly to enforce force majeure. Clause to treat this contract as cancelled. Rgds/Chandresh It states that they have been located about 180 tons of Union Carbide material which they wish to supply against the pending contract and also these supplies were being made just to honour their commitments. No doubt if we read the sales indent as confirmed by the respondent, it shows that the shipment has to take place by 31st March, i.e. first quarter of 1988 but the communication extracted above shows that it is against the pending contract which is not there. If the contract is not there, where is the question of honouring their commitments. We are therefore of the view that this communication cannot be of much help in the absence of any evidence produced by the respondent regarding pending contract. 5. The Collector in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for better appreciation, the third question put to Surekha by the officers recording his statement, and his response which has been reproduced, should both be seen : Q3: Since the goods were not imported by you till the date of amendment of IGM, do you agree that you negotiated price with M/s. Seven Star Trading cannot be legally applicable to goods in question? A: I agree that it is not applicable both the said goods were allotted to me on 12-4-1988 vide the certificate of original invoices which may be seen at pages 69 to 72 and 81 to 84 and 93 to 96 in the package list dated 12-4-1988. The respective B/Ls and container numbers are shown. As such I request we will be given the benefit for valuation purposes. These goods were allotted and imported by us as on 12-4-1988, the date of shipment. Further I may bring to your kind notice, in present case, the goods were to be supplied to him by M/s. Seven Star Trading Co. Pvt. Ltd., Singapore, as per our communication by first end of the quarter 88. That is 31-3-1988. I invite your attention to a telex copy dated 11-4-1988 in page 59 of the submissions filed by Shri Chandresh Maheshwari. The material have been allotted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue it would have to be accepted not only in those cases where it is only advantageous to the department but in other cases too. This would mean in effect that it is the importer's declaration alone that would determine the value. If the importer states, that he has received the goods without any payment, the goods would have to be valued at nil. It was therefore incorrect to fix the price on the basis of Sureka s statement alone. 12. How, then, is the price to be fixed in this case. The contract was executed in November, 1987 and the goods shipped in April, 1989. The goods could not be shipped before the contract expired on 31-3-1988 apparently because the supplier could not procure the goods. By its telex dated 21-3-1988 they had, invoking the force majeure communicate cancellation of the contract. Correspondence between the importer and the supplier having produced. It shows that on the protestation of the appellant, the supplier offered to look for some material of better specification than it ordered for. Its telex dated 31-3-1988, offered to supply 108 MT of Union Carbide material, which was ultimately what supplied. The correspondence, however, stops at this stage. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same goods at about the time of importation. In his statement recorded earlier in time that was referred to by both members, Shri Nirmal Surekha on 10-10-88 said the following- I have been asked to state that whether the value shown in the invoice was the real value prevailing at the time and place of importation as provided under Section 14 of the Customs Act, 1962. I have to state it is true that the invoice covered by said shipment showed value as prevailing in November, 1987 and as per the sale contract. The goods were to be shipped before 31st March, 1988 whereas the subject goods were shipped after expiry of the scheduled period of shipment namely 12th April, 1988. As far as I understand the value as prevailing in April, 1988 for such type of goods was US $ 1000. Since the goods have been imported immediately after the expiry of contract with our suppliers and also then we have paid only the contracted amount that is @ US $ 900/- per M.T. to the suppliers we have no objection in enhancing the value for customs duty purpose @ US $ 950/- per MT. Provided no action is taken against us in which case we do not want any show cause notice or personal hearing. We are prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X
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