9911796707
TMI Blog2009 (8) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... Virgin Iceland. The declared CIF value per loom, alongwith accessories was - 27,000/- EURO C F Mumbai. While the proforma invoice No. 848/059/04 dated 1-3-04 mentioned 80-90 TLLs (Central Tucking Units) among the supplied parts, the commercial invoice No. 786/022/04 dated 19-3-04 and the packing list which was subsequently issued, did not mention the TLLs. The bill of entry for clearance of this consignment was filed on 7-4-04 and accordingly bill of entry while mentioning the details of the imported machines and spares, did not mention the Central Tucking Units. On examination of the consignment it was found there were ninety three second hand Central Tucking Units. Though as per the Chartered Engineer s Certificate dated 1-3-04 produced by the importers, the year of manufacture was 1979, the officers had doubt about the year of manufacture and accordingly a detailed examination of the machinery was conducted with the help of Forensic Laboratory which submitted its report dated 25-5-04 mentioning that - (a) In the machine bearing serial No. 69331, the original plate on the electronic panel was missing but some parts of the machine bear embossed description 19/5/71 which indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-6-04 informed that his statements dated 27-4-04 and 27-5-04 had been given without understanding the law and implications and the same had not been tendered voluntarily and that these statements may be treated as retracted. It was also mentioned in this letter that actual price of tucking unit is around 300 to 350 EURO per piece and not 1100 EURO per piece, which has been mentioned by him without actually ascertaining the price. Vide letter dated 9-6-04 the importer submitted copy of the letter dated 8-6-04 from M/s. Roland Schmidt GmbH showing the price of such tucking unit in the year 1979. 1.4 Statement of Shri Lalit Gulati was recorded again on 27-7-04, wherein he stated that though vide letter dated 8-6-04 he had retracted his statements dated 27-4-04 and 27-5-04, he has read those statements again and admits that there is no contradiction in his statements and hence the same may be treated as correct, that he, however, wants to reconsider the value of tucking units-1100 EURO per piece as given by him earlier, as in his view the international price is less than the same and that according to him the price of second hand sulzer tucking unit would be 250 to 400 EURO per piec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of appellant s company. 1.7 Against this order of the Commissioner, the appellant company as well as Shri Lalit Gulati filed appeals before the Tribunal which were disposed off vide final order No. 486-487/07 dated 5-11-07 by which - (a) Confiscation of the looms was upheld on the ground that their year of manufacture had been misdeclared; (b) Confiscation of tucking units was also upheld on the ground that that the same has not been declared. The Tribunal also upheld the quantum of redemption fine in respect of the second hand sulzer shuttleless looms. However, the matter was remanded to the Commissioner for de novo adjudication on the issue of valuation of the Central Tucking Units and their eligibility for concessional rate of duty under Notification No. 21/2002-Cus. The Tribunal directed that the Adjudicating Authority after deciding the issue of valuation of the tucking units will decide the afresh the issue regarding quantum of redemption fine in respect of them and also the quantum of penalty to be imposed on both the appellants. 1.8 In pursuance of this order of the Tribunal, the points remanded by the Tribunal were adjudicated de novo by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housand Nine Hundred Eighty Five) only. 2.1.5 The appellant had presented a letter from M/s. Roland Schmidt GmbH indicating that the price of new Central Tucking Unit was Swiss Franc 5150 in the year 1979. The department has not accepted this letter merely because of it was submitted subsequent to the filing of bill of entry. If the price indicated in the letter from M/s. Roland Schmidt GmbH is accepted, the original price in 1979 would come to Rs. 25,169/- (Rupees Twenty Five Thousand One Hundred Sixty Nine) per piece. In any case, since the appellant have produced evidence that contemporaneous import of second hand Central Tucking units has been made at U.S. $ 200 per piece, that value should have been adopted in this case. 2.1.6 Central Tucking units are spare part of the imported looms and the same do not have any use other than being used with the imported looms. Serial No. 251 of the Notification No. 21/2002-Cus. dated 1-3-2002 prescribes concessional rate of duty of 5% for machinery or equipment specified in list 31 and also the spare parts for the maintenance of these machines falling under Chapter 84, 85 and 90. List 31 mentions shuttleless looms (air jet, water jet, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the Central Tucking Units for concessional rate of duty under Notification No. 21/2002-Cus., we find that S. No. 251 of table annexed to this Notification prescribes a concessional rate of duty of 5% adv. for - machinery or equipment specified in list 31 and spare parts for maintenance of the above machines . List 31 covers - Shuttleless looms (air jet, water jet, rapier, projectile and narrow width high speed needles). There is no dispute that the goods are shuttleless looms covered by list 31. The point of dispute is as to whether the central tucking units are spare parts of these looms. Thus, the concessional rate of duty for central tucking units depends upon the facts as to whether or not the same are the part of the imported Sulzer Projectile Shuttleless Loom. In this regard, we find that Director, Ministry of Textile, Office of the Textile Commissioner vide letter dated 17-2-05 addressed to the Commissioner of Customs, Jaipur has given a specific clarification that Tucking Unit is a spare part of shuttleless weaving machine and that the Tucking Units get worn out after some use and have to be replaced and that both the shuttleless looms and the Tucking Units are cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004. However since two second hand goods cannot be treated as identical and as per Shri Gulati, the price of second hand Central Tucking Units should be between Euro 250 to 400 per unit, we are of the view that price of 400 EURO per piece for second hand Tucking Units, as mentioned by Shri Lalit Gulati in his statement dated 27-7-04 can be adopted. We, therefore, hold that for the purpose of assessment of duty, it would be fair and reasonable to adopt the price of Central Tucking Units as 400 EURO per piece. 6. In view of our above findings, we order as under :- (a) The ninety three second hand Central Tucking Units be valued @ EURO 400 per piece, for the purpose of assessment of duty. (b) The benefit of concessional rate under Notification No. 21/2002-Cus. is available to Central Tucking Units and the duty demand is to be re-determined accordingly. (c) The redemption fine in lieu of confiscation in respect of ninety three Central Tucking Units is reduced to Rs. 4,00,000/- (Rupees Four Lakh). (d) The penalty under Section 112 (a) of Customs Act, 1962 on the Appellant company and Shri Lalit Gulati, Director of the Appellant s company is reduced to Rs. 1,50,000/- (Rupees On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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