9911796707
TMI Blog2007 (7) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... try. Consequent to the investigation, the show cause notices were issued to the following parties: (i) M/s. Vijay Cine Service (ii) M/s. Vijay Cine Services Pvt. Ltd. (iii) Shri Amrut Vijay Parab, Proprietor of M/s. Vijay Cine Service (iv) M/s. Nivedita Vijay Parab, Director of M/s. Vijay Cine Services Pvt. Ltd. (v) M/s. ISCO Optic AG, Germany. 3. The show cause notices proposed for rejection of transaction value of Rs. 2,50,245.43 under Rule 10A of the Customs Valuation Rules, 1988. The value was south to be enhanced to Rs. 44,51,752/- (Euro 92,360) FOB in terms of Rule 5 of the Customs Valuation Rules, 1988. The differential duty of Rs. 24,47,813/- was demanded under Section 28 of Customs Act along with interest. Further, there was a proposal for confiscation of the impugned goods under Sections 111(d) and 111(m) of Customs Act, 1962 read with Sections 3(2), 3(3) and 111(1) of the Foreign Trade (Development and Regulation) Act, 1992 read with Rule 11 and 14 of the Foreign Trade (Regulation) Rules, 1993 read with Section 46(4) of the Customs Act, 1962. The penalty under Section 114(a) and Section 112(a) of the Customs was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the impugned goods cannot be compared with the goods imported by Ushakiron. Hence, in his opinion Rule 5 of the Customs Valuation Rules cannot be made applicable. (v) It was urged that the Customs department carried out certain investigation through German Customs Authorities in respect of foreign supplier and the report which is in their favour have not been shown. (vi) In respect of earlier import, the assessment has become final and no appeal had been preferred by the department. (vii) The sale price of similar or identical goods is not relevant and which cannot be a basis for rejecting the transaction value. (viii) There is no evidence of any wilful suppression of facts warranting invocation of extended period. (ix) The duty of Rs. 40,40,414/- has been demanded from M/s. Vijay Cine Services Pvt. Ltd. It is seen that the noticees are not importer of the subject goods though the Bill of Entry was filed erroneously in the name of M/s. Vijay Cine Services Pvt. Ltd. The invoices were raised by the foreign supplier in the name of M/s. Vijay Cine Service. The above fact was brought out to the notice of the Customs Authorities vide letter dated 1-4-2002. The duty c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement that the impugned goods are old stock is only an afterthought. Moreover, the importer never declared that the goods are old stock at the time of import. (ii) The learned SDR referred to Para 10 of the impugned order wherein it is stated that Shri Binod Pradhan, a well known Cinematographer of Mumbai Film Industry opined that the lenses were in good condition and he was 99% sure that those could be used as they were. (iii) Our attention was also drawn to Para 11 of the Order-in-Original. In letter dated 17-1-2001 from ISCO Optic, it is stated that M/s. Vijay Cine Services were their exclusive distributor. However, the same manufacturer informs M/s. Rajshree Production that M/s. Vijay Cine Services Pvt. Ltd. was their distributor in India. The dual stand of the supplier proves that they are also hand in glove with the importer. Moreover, the relationship between the supplier and importer was never disclosed/declared before the Customs Authorities. Our attention was invited to Para 13 of OIO wherein it is mentioned that advance payment of Rs. 60/- lakh was made by cheque to the appellants by M/s. Balaji Telefilms Ltd., Mumbai in foreign exchange for the items imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in Rule 4(2). Reliance has been placed on the following decisions : (a) Commissioner of Customs, Bangalore v. H. M. Leisure - 2006 (199) E.L.T. 464. (b) Jain Shudh Vanaspati Limited - 1996 (86) E.L.T. 460 (S.C.). Findings 7. We have gone through the records of the case carefully. The issue involved in these appeals is the correct valuation of the following items imported by the appellants:- (i) Anamorphic lenses (40 mm, 50 mm, 75 mm, 100 mm and 135 mm) vide Bill of Entry dated 20-12-2002. (ii) Similar goods as above imported vide Bills of Entry dated 9-10-2002, 24-10-2002, 23-10-2001, 12-12-2001. (iii) Jimmy Jib Crane with its accessories (iv) Angenieux HR 25-250mm Lens with case The goods imported on 20-12-2002 are still in the custody of the Customs Department. But, the goods imported earlier had already been released. It is seen that the major value of the imported goods can be attributed to the Anamorphic lenses. The values declared by the appellants in respect of the lenses imported on 20-12-2002 are as follows :- (i) 40 mm lens 775 Euro (ii) 50 mm lens 895 Euro (iii) 75 mm lens 950 Euro (iv) 100 mm lens 1050 Euro (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in her statement dated 31-12-2003, had stated that the lenses of this type were not being manufactured by the supplier company for the last 15 to 20 years and the subject lenses were specially manufactured for her company as a special case. She has also stated that these lenses were specially manufactured on their request and the price quoted to them was only for their company. The above contention of Ms. Nivedita V. Parab is not in consonance with the explanations of the supplier that the impugned set of lenses was manufactured in the year 1990 and was lying unsold witn them. In view of the contradictory versions, the Commissioner has rejected the explanation that the impugned goods are from stock lot. 7.3 Various experts have examined the goods and taking into consideration the experts opinion, the Commissioner has come to the conclusion that the impugned goods are new and the contention that they are from stock lot is only an after thought. We cannot fault with the conclusion reached by the Commissioner. If the goods are really from the old stock, the importers ought to have declared the fact even at the time of import. Moreover, the appellants had not disclosed to the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on 31-12-2001 at assessable value of Rs. 11,72,743/-. But, the appellants M/s. VCS imported identical goods on 23-10-2001 and 12-12-2001 at an assessable value of Rs. 1,18,054.48 and Rs. 1,18,176.82. Therefore, he had ordered enhancement of the value on the basis of contemporaneous import value. There is actually no detailed investigation by the Revenue and no examination of the issue by the Commissioner in the impugned order. Moreover, the goods had already been cleared in the year 2001. In these circumstances, we are not inclined for enhancement of the value of Jimmy Jib Cranes. 7.6 Similar is the case in respect of Angenieux HR 25-250 mm lens. The above goods were imported by M/s. VCSPL in the year 2001 and cleared. There is no detailed examination of the issue as in the case Anamorphic lenses. Therefore, we do not uphold the enhancement of value of Angenieux HR-25-250 mm lens imported in 2001 by M/s. VCSPL. 7.7 The Commissioner s finding that the impugned goods are liable for confiscation under Section 111(m) of the Customs Act, 1962 is upheld. However, having regard to the fact that the said goods are in the case of the Department for a very long period, the redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
