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TMI Blog2002 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... tor respectively under Section 112(a) of the Customs Act. In his appeal, Shri Sanjiv Goyal (Director) is aggrieved by the imposition of the penalty of Rs. 2 lakhs, while, in their appeal, the company is aggrieved by the rest of the Commissioner s order. 2. The relevant facts of the case are briefly as under :- The company imported two consignments of components of Computerised Axial Tomography Scanner (for short, CT Scanner) from a Japanese supplier against two separate Letters of Credit. Both the consignments were shipped by the same vessel. A Bill of Entry for clearing the first consignment was filed in the Jawahar Customs House on 31-7-94. That consignment consisted of six different components of CT Scanner, viz. Gantry, Data Acquisition System, Patient Table, High Voltage Tank, Computer and Image Formater, which were cleared at Customs on 7-7-95 upon assessment to 15% basic customs duty +10% additional customs duty in terms of Exemption Notification No. 83/94, dated 1-3-94, which exempted parts required for manufacture of specified medical equipments subject to recommendation by the Joint Director in the Directorate of Industries to the effect that such parts were require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Commissioner of Customs in May, 1996, pleading for speedy clearance of the goods. They submitted that vital components such as X-ray tube, Tetrode tube and Disc drive, required for making CT Scanner, had not been imported along with the consignment. They also produced the relevant Bills of Entry to show that the said components had been separately imported by them in the past through Air Cargo Complex, Delhi. The appellants also submitted that there was no undervaluation of the goods. The Commissioner, however, rejected their contentions and passed the impugned order. 3. Heard both sides. Ld. Counsel for the appellants reiterated the grounds of the appeal and relied on the following decisions of the Tribunal :- (1) Wipro GE Medical Systems v. CC, Bangalore [1999 (106) E.L.T. 169 (Tribunal)] (2) Polar Appliances Limited v. CC, New Delhi [2001 (127) E.L.T. 448 (Tribunal) = 2001 (43) RLT 32 (CEGAT-Delhi)]. 4. Ld. DR for the Revenue reiterated the findings of the adjudicating authority. 5. Considered the submissions. A consignment of certain components of CT Scanner, imported by the appellant-company from Japan was cleared on payment of duty @ 15% (basic) + ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the consignment included the software and manuals required for making the scanner and, therefore, the cost thereof, estimated at Rs. 1,80,000/-, was also liable to be included in the assessable value of the goods. It was further held that the company and its Director had intentionally misdeclared the imported goods as components of whole body scanner in a mala fide manner and with a mischievous intent to evade duty. 6. It has been pleaded in these appeals that a CT Scanner is based on the use of X-rays and, therefore, in the absence of X-ray tube in the imported consignments, the goods cannot be held to have assumed the essential character of a C.T. Scanner. It has also been contended that Tetrode tube and Disc drive are also vital components of a CT Scanner and, therefore, in the absence of these items in the consignments in question, the goods can hardly acquire the essential character of a CT Scanner. According to the appellants, the Commissioner has erred in applying Rule 2(a) of the Interpretative Rules to the goods in question. It is the further submission of the appellants that, once the certificate from the Jt. Director of Industries was produced along with the Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Entry for one in July, 1994 and, for the other, one year later, claiming the benefit of concessional rate of duty under Notification 83/94 available to components (parts) and accessories falling under TSH 9022.90. The Customs authorities took the aid of Interpretative Rule 2(a) and held that the components covered by the two consignments constituted an incomplete CT Scanner having the essential character of a complete one classifiable under TSH 9022.11 and chargeable to Basic and Additional Customs duties at the rates of 40% and 5% respectively. We find that this case of the department was accepted in toto by the appellants as evidenced by the statements dated 13-10-95 and 20-11-95 of Shri Sanjiv Goyal, Director of the appellant-company. Shri Goyal also admitted that they had separately procured three other components of CT Scanner earlier from abroad, which were X-ray tube, Tetrode tube and Disc Drive. The Commissioner has found that, even without the X-ray tube, Tetrode tube and Disc Drive, the components in the two consignments would constitute an incomplete CT Scanner with the essential character of a complete CT Scanner classifiable under TSH 9022.11. He has, in this connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the department s case, we hold that the goods imported by them were a CT Scanner classifiable under TSH 9022.11 and chargeable to Basic and Additional duties of Customs at the rates of 40% and 5% respectively. However, we do not find any justification in loading an amount of Rs. 1,80,000/- on account of software and manual to the assessable value of the goods. The Commissioner has loaded this amount merely on the basis of an observation that it does not seem plausible that the software is not contained in the goods imported . The adjudicating authority, obviously, has not categorically found that the consignments did contain software or manuals. Without a clear finding that software and manuals formed a part of the consignments, it was not open to the Commissioner to order loading of the cost of software and manuals to the assessable value. In the impugned order, the Commissioner has held that the goods shall be assessed to duty on the basis of FOB value as declared in the two invoices plus Rs. 1,80,000/- plus usual additions as per law . He has not spelt out "the usual additions . We are unable to sustain any such unspecified additions. We hold that the goods be assessed t ..... 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