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TMI Blog2009 (12) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... , again in the presence of the importer s representative. From this re-examination also, it emerged that the imported components could be assembled into complete machines, it was also observed that the brand name of a photocopier (Canon 305) was embossed on the plastic cabinet of the machine. Technical literature relating to such photocopiers was also examined. On the basis of the results of these investigations, a show-cause notice was issued to the appellant, proposing (a) to reject the declared value and demand differential duty of over Rs. 20.9 lakhs, (b) to confiscate the goods under Section 111(d) and (m) of the Customs Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947, and (c) to impose penalty on the importer under Section 112(a) of the Customs Act. In adjudication of this notice, the learned Collector of Customs confirmed the demand of differential duty against the assessee, ordered confiscation of the goods with option for redemption against payment of fine of Rs. 13,97,000/- and imposed a penalty of Rs. 5,00,000/- on the party. The appeal filed against the Collector s order was disposed of by this Tribunal in favour of the importer. During the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported were Canon 305 with reference to the technical information available. These results were communicated to the party from the Custom House in a letter dated 10-11-1987. In the same letter, the party was given an opportunity to make additional arguments, if any. Later on, after hearing the party, the learned Collector passed the impugned order. 3. When the importer s appeal against the Collector s order was taken up by this Tribunal, it was noticed that any copy of the examination report dated 10-11-1987 had not been produced before the Tribunal nor supplied to the appellant. The Tribunal further felt that, for a logical conclusion, there should be a re-examination of the consignment. It was observed that such re-examination should be conducted in the presence of representatives of the appellant and it was directed that a report should be submitted within four weeks. The counsel for the appellant undertook to appear before the adjudicating authority for the re-examination of the goods. Pursuant to this interim direction issued by the Bench, the re-examination of the consignment took place and a report submitted to the Tribunal on 29-9-2008. As per this report, there were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons therefor. In keeping with these conditions, the examination was conducted before the adjudicating authority in the presence of representatives of the appellant. The examination report dated 29-9-2008 is a part of the record and the same is against the appellant. We are of the considered view that, where the appellant was a party to the departmental appeal before the Hon ble High Court but yet chose not to challenge the Hon ble High Court s order wherein the examination report of 2008 was also referred to for the purpose of guidance to this Tribunal while remanding the case, the appellant cannot take a turnabout to challenge the examination report of 2008 in the manner the learned counsel has chosen to do today. The examination report dated 29-9-2008 is a part and parcel of these proceedings inasmuch as such examination was held in terms of the specific direction issued by this Tribunal. It stands on a different footing vis-a-vis the earlier examination reports. Had the appellant any genuine grievance against the examination report, they would have raised the same before the Tribunal itself in the earlier round of litigation. Even after remand of the case by the Hon ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments) unlike in the instant case. It is pointed out that, in the instant case, all the components of photocopying machines were imported in a single consignment covered by a single invoice and the examination reports in relation to this consignment confirmed the import of photocopying machines in CKD condition. It is argued that the view taken by the Tribunal and the apex court in the case of Sony India Ltd. is virtually in favour of the Revenue with reference to the Interpretative Rule 2(a). 6. We have considered the above submissions as well. In the first instance, we note that there was categorical admission by the appellant under Section 108 of the Customs Act that the consignment imported by them consisted of 20 units of photocopying machines and that no indigenously procured component was required to make up the complete machine. A similar case was considered by the Hon ble Supreme Court in the case of Sharp Business Machines Pvt. Ltd. In that case, plain paper copiers in SKD/CKD condition were found to have been imported in the guise of parts and accessories and, on the basis of this finding, misdeclaration of value of the goods was also noted and the declared val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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