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TMI Blog2009 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of Entry. (c) Since the imported goods were second-hand machinery, the same were got examined by Shri Shah a Chartered Engineer, in the panel for the said purpose. Shri Shah furnished his report dated 18-9-2002 agreeing with the prices declared for the consignment and confirming the year of the manufacture claimed by them to be correct. (d) Subsequent examination by the officers of Preventive wing revealed that there were six numbers of new Jacquard machines and the Director of the company agreed to pay the duty involved on the said machines. (e) A verification was got conducted with the help of Police Forensic Science Laboratory. 4 out of 10 looms were examined by them and, in respect of each of the looms, it was found that the original plates on the control panels and on the Dobby were missing. At the missing plate portion, four holes were found at each of the control panels and adhesive materials was found at missing plate portion on the Dobby. Aluminium plate was found on LHS of the each loom and was attached with two pins. The plates could easily be removed and fixed in the machine. Also embossed descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv), & (v) inasmuch as the finding in Para (iii) is in their favour and the findings in Para (iv) & (v) relate to items involving small value. However, he pleaded that no penalty should be imposed for technical violation insofar as the same relates to Para (iv) & (v). (e) As the year of manufacture of the machine has been correctly declared and the overall value declared is also correct the goods should not be confiscated and no penalty should be imposed on the appellant company as well as the Director and Manager of the company. (f) He relies on the decision of the Tribunal in the case of M.K. India Ltd. v. C.C, Airport, reported in 2006 (206) E.L.T. 376 (Tri.) wherein the issue of import of second-hand machinery has been decided in favour of the assessee in substantially same set of the facts. 5. Learned DR submits that the report dated 18-9-2002 of the Chartered Engineer Shri Shah was applicable only in respect of looms and not to the Jacquard machines. This has been clarified in his statement dated 20-9-2002. He submits that the Manager has personally visited Athens and got the goods inspected and shipped and supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the importer. (v) The duty should be recovered on merits on one Sony Digital Video Camera, one Compaq Laptop and one Air Plastic Tub as proposed in the show cause notice in terms of the bond executed by the importer. (vi) I impose penalty of Rs. 10,00,000/- (Rupees ten lakhs only) on the importer under Section 112(a) of the Customs Act, 1962. (vii) I impose penalty of Rs. 5,00,000/- (Rupees five lakhs only) on Shri Vishnu Kogata, Director of the importer under Section 112(a) of the Customs Act, 1962." (viii) I impose penalty of Rs. 1,00,000/- (Rupees five lakhs only) on Shri Anil Kogata, Manager of the importer under Section 112(a) of the Customs Act, 1962." 6.2 We find that the appellant company has declared the year of manufacture of looms as 1993 and there was no specific declaration of the year of manufacture of the accessories. The Commissioner has held that the year of manufacture of the looms is 1988-1990 but the Jacquard machines are new. The ld Advocate does not seriously contest the findings of the Commissioner that these Jacquard machines are new but contests finding relating to the year of manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount in the invoice. Learned Advocate has submitted the customs authorities have been assessing the 1993 model loom at 19,000 U.S.$ per loom contemporaneously. This has not been refuted. While it is not advisable to compare the value of one consignment of second hand machineries with that of other, we find that the price declared in respect of the present consignment is much above the contemporaneous prices. Under these circumstances the claim of the learned Advocate that the value of Jacquard stands included in the overall value declared seems reasonable and acceptable. The learned Advocate fairly conceded that the new Jacquard are being imported at 5800 U.S.$ per machine. Therefore, we hold that these 6 number of Jacquard machines shall be assessed at 5800 U.S.$ per machine after extending the benefit of concession already allowed in Sl. No. (iii) of the order of the Commissioner. However, the value of the consignment of the looms excluding the 6 Jacquard machines shall be taken by deducting the value of 6 Jacquard machines from the overall value of Rs. 1,45,36,950/-. 6.5 The proforma invoice and the final invoice clearly indicate the price declared is for the looms and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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